IN     THE 


MATTER  OF  PROVING 


LAST   WILL    AND   TESTAMENT 


OF  THE   LATE 


ROBERT    STEWART,    Esa. 


New-York,  January,  1844. 


TO    THE   PUBLIC. 


I  HAVE  been  forced,  in  a  manner  known  to  the  reader,  to  a 
publication  of  the  record  of  the  Surrogate's  Court,  in  the  matter 
of  the  Will  of  my  late  uncle,  Robert  Stewart,  and  feel  it  due 
to  myself  and  family,  in  connexion  with  it,  to  make  the  fol- 
lowing brief  and  plain  statement  of  facts.  Strictly  private  as 
these  facts  are,  I  do  not  feel  at  liberty  to  withhold  them,  in  the 
position  of  defence  which  I  have  been  compelled  to  take. 

TheLispenard  estate,  though  large,  was  in  1806,  at  the  death 
of  my  grandfather,  Mr.  Lispenard,  senior,  to  a  great  extent  un- 
improved and  unproductive,  consisting  chiefly  of  meadows  and 
marshes,  which,  like  much  other  property  of  a  similar  character 
in  the  same  vicinity,  were  made  available  as  building  lots  by  fill- 
ing in  and  the  opening  of  streets,  only  at  an  expense  ruinous,  as  is 
well  known,  to  many  of  the  original  holders.  Nothing  but  the 
talent  for  business,  unwearied  vigilance,  and  skilful  manage- 
ment of  my  father,  Alexander  L.  Stewart,  aided  by  the  expe- 
rience and  large  monied  resources  of  his  brother,  Robert  Stew- 
art, saved  him  in  making  his  portion  of  the  Lispenard  estate 
saleable,  from  the  bankruptcy  which  befel  other  proprietors  in 
that  section  of  the  city.  As  it  Avas,  he  did  not  escape  perplexing 
embarrassments  for  many  years. 

At  a  later  period,  these  embarrassments  were  greatly  increased 
by  advances  made  to  J.  W.  Webb  to  establish  and  sustain  tbe 
Morning  Courier  —  advances  which  not  only  absorbed  all 
Mr.  Stewart's  own  ready  funds,  but  required  loans  by  him  on 


interest  from  others,  and  which  effectually  prevented  him,  after 
the  year  1830,  from  devoting  his  resources  to  the  improvement 
of  his  own  estate,  and  from  makino-  investments  open  to  him, 
under  circumstances  that  would,  in  his  opinion,  as  often  ex- 
pressed, have  insured  affluence  to  his  children. 

From  these  and  other  causes,  such  was  the  condition  of  my 
father's  estate,  at  the  time  of  his  death,  in  1838,  that  had  his 
Will  called  for  the  settlement  of  his  affairs,  and  the  distribution 
of  !iis  property  among-  his  children,  it  would  have  yielded  a 
very  small  dividend  to  each.  Moreover,  the  just  claims  of  his 
brother,  Robert  Stewart,  for  advances  made  thirty  years  ago, 
would  have  covered  the  whole.  From  these  two  facts  may  be 
learned,  at  once,  the  propriety  and  the  necessity  (a  propriety  and 
necessity  in  which  those  of  the  children  of  Alexander  L.  Stew- 
art, who  knew  the  condition  of  the  property,  ever  cheerfully  ac- 
quiesced) of  leaving  his  estate  as  he  did  by  a  power  in  trust, 
to  the  management  and  at  the  disposal  of  his  brother.  My  father 
well  knew,  that  this  was  the  surest,  if  not  the  only  means  of  pro- 
viding for  his  children  an  ultimate  competence ;  and  he  knew, 
too,  better  than  any  other  could,  from  an'  association  of  brother- 
hood which  was  without  the  separation  of  a  day  for  near  forty 
years,  that  his  brother  had  no  other  object  in  life  but  the  inter- 
est of  those  children. 

At  the  time  of  my  uncle  Robert  Stewart's  death,  in  June  last, 
the  estate  was  in  a  worse  condition  even,  than  at  the  decease 
of  my  father.  The  reasons  for  keeping  it  together,  till  freed  from 
its  embarrassments,  existed  even  in  a  greater  degree :  and  hence 
it  is,  and  hence  only,  that  I,  contrary  to  my  wishes,  have  been 
left  his  sole  devisee. 

I  have  alluded  to  advances  made  by  ray  father  to  J.  Watson 
Webb.  Not  only  do  the  books  of  the  estate  show  what  those 
advances  are,  but  their  whole  history,  in.  time  and  circumstances, 
with  constant  assurances  and  demonstrations  of  speedy  repay- 


ment,  is  in  my  possession,  in  statement  after  statement,  and  letter 
upon  letter,  in  the  hand  writing  of  that  individual  himself.  To 
show  that  there  can  be  no  mistake  in  the  nature  of  these  ad- 
vances, or  in  the  just  claim  of  my  father  for  their  return,  I  will 
—  without  entering  into  a  detail  of  the  successive  commuta- 
tions with  creditors,  assignments,  &c.,  of  the  Courier  &  Enquirer, 
which  this  series  of  papers  exhibits  —  give  one  or  two  ex- 
tracts only  from  his  own  letters,  in  reference  to  them. 

In  a  long  communication,  dated  Sept.  1st,  1831,  addressed  to 
Alexander  L.  Stewart,  and  urging,  on  various  grounds,  a  com- 
mutation of  the  debt  doe  by  him,  J.  W.  Webb  thus  writes  : 

"  The  Courier  ct  Enquirer  is  at  this  moment  in  debt  upwards 
of  $50,000.  My  half  is  $25,000,  Now  let  us  suppose  that  we* 
pay  the  interest  upon  our  debt,  and  realize  annually  $14,000 
of  profits  :  of  this  sum  $7,000  is  mine.  I  must  live  out  of  it. 
and  will  have  but  $4,000  annually  to  apply  to  the  reduction  of 
my  part  of  the  debt.  At  the  expiration  of  six  years  the  debt 
would  be  paid ;  but  how  would  I  stand  then  with  the  world  ? 
Why  merely  adding  simple  interest  to  the  amount  of  your  debt 
against  me,  I  will  owe  upwards  of  $50,000  If  *  *  *  *  j 
now  propose  as  follows  :  that  you  shall  compromise  the  whole 
of  your  claim  for  $15,000;  that  all  mortgages,  papers,  &c.,  now 
existing  shall  be  cancelled,  and  anew  mortgage  for  $15,000  ex- 
ecuted, conditioned  that  I  shall  pay  $750  and  interest  on  the 
whole  sum  on  the  28th  day  of  April  next,  and  $750  and  interest 
on  the  whole  sum  unpaid,  on  every  20th  of  October  and  April 
following." 

A  deduction  was  accorded  by  my  father  ;  and  constitutes 
the  $17,000  specified  in  the  first  Will  of  my  uncle  Robert  Stew- 
art, as  the  sum  to  be  deducted  from  the  portion  of  my  sister  Helen, 

*  Mr.  Noah  was  co-proprietor  at  the  time. 

t  1  he  magnitude  of  the  debt  may  be  easily  estimated  if  six  years  of  simple 
interest  would  ewell  it  to  upwards  of  $50,000. 


which  Will  will  be  found  on  an  after  page,  in  the  proceedings 
of  the  Surrogate's  Court.  This  $17,000  was  a  dead  loss  sus- 
tained by  my  father  in  compromising  with  J.  W.  Webb,  and  is 
entirely  distinct  from  demands  existing  at  the  time  of  making 
that  Will,  secured  by  bond  and  mortgage,  and  responsible  sure- 
ties. 

On  March  17th,  1835,  J.  W.  Webb,  in  a  letter  to  an 
agent  of  Mr.  Stewart,  after  stating  the  faihire  of  certain 
efforts  to  raise  money,  continues  thus  :  "  In  consequence  of  this 
disappointment,  I  liave  called  on  Tylee,  and  he  has  consented 
to  take  $14,000  for  his  claim,  which  under  the  assignment  is 
$15,000,  and  interest  from  May  1st,  1832,  equal  to  $18,000. 
Mr.  Stewart's  is  $25,000,  and  interest  from  8th  December,  1832, 
to  8th  March,  1835,  2  years  and  3  months,  equal  to  $29,000. 

"  Now  I  will  give  A.  L.  S.  and  D.  T.  a  mortgage  on  every- 
thing for  v$43,000  in  full,  payable  in  seven  equal  semi-annual 
instalments  of  $5,000  each,  and  one  of  $8,000,  commencing  on 
the  1st  of  July,  1836,  and  terminating  on  the  1st  of  .January, 
1840,  with  interest  at  7  per  cent.,  on  the  1st  of  January  and 
July  in  each  year,  Tylee  to  receive  a  half  of  all  payments  till 
his  debt  shall  be  paid.  I  will  then,  with  Mrs.  Webb's*  proper- 
ty, and  the  aid  of  two  friends,  buy  off •  and ,  and  pay 

and .     By  this  arrangement,  Mr.  Stewart  will  be  paid 

within  five  years,  and  will  commence  getting  his  interest  imme- 


*  Note.  —  This  reference  to  the  property  of  Mrs.  Webb,  calls  for  a  passing 
remark.  In  a  calumniating  and  libellous  publication  against  myselfand  family, 
by  J.  W.  Webb,  in  the  Courier  and  Enquirer  of  July  26, 1843,  he  thought  pro- 
per to  avow  himself  the  willing  agent  of  what  he  would  represent  and  have 
believed  to  be,  a  fraud  by  my  father  upon  my  mother,  by  securing  from  her 
through  the  instrumentality  of  J.  W.  Webb,  a  large  amount  of  real  property, 
comparatively  without  consideration.  While  he  is  candid  enough  to  state  that 
this  property  was  unimproved,  and  consequently  unproductive,  he  is  careful  to 


diately.        *      *      *      *       I  beg  you  to  lay  this  letter  before 
father  at  once." 

Thus,  at  the  end  of  four  years,  it  is  seen,  that  in  place  of  the 
payment  of  the  $15,000  due,  after  the  deduction  of  1831,  $29,000 
is  exhibited,  as  the  debt,  to  Mr.  Stewart.  Of  this  sum,  Webb 
&  Averill  of  Troy,  paid  in  1840,  as  sureties  of  J.  W.  Webb,  some 
$14,000  in  ivesteni  lands  ;  while  the  balance,  $15,963  20,  was 
transferred  in  1841  to  J.  W.  Webb's  schedule  of  bankruptcy. 

These  losses  of  Mr.  Stewart,  by  compromise  and  bankruptcy, 
amount  together  to  more  than  $30,000  — a  greater  sum  than 
his  estate,  under  the  best  management,  is  likely  to  divide  to 
each  of  his  other  children ;  and  sufficiently  accounts  for  the 
efforts  of  J.  W.  Webb  to  invalidate  the  Will  of  my  uncle. 

Now,  the  justice  and  equity  of  making  these  acknowledged 
losses  a  debt  due  by  J.  W.  Webb  to  the  estate  of  Mr.  Stewart, 
as  advances  on  his  wife's  portion  of  her  father's  property,  rests 
simply  and  exclusively  upon  the  question  of  the  proprietor- 
ship of  the  Morning  Courier,  from  December,  1827,  to  May, 
1829,  during  which  period  the  advances  by  which  they  occur- 
red, were  chiefly  made.  This  question  J.  W.  Webb  thought 
proper  to  bring  forward  in  his  paper,  on  the  17th  inst.,  in 
a  manner  invidious  to  the  memory  and  honor  of  my  father,  and 
to  his  well-merited  reputation  for  integrity  and  uprightness ;  a 


withhold  the  fact  that  the  city  property  which  was  in  return  settled  exclu- 
Bively  on  my  mother,  yielded  her  a  handsome  separate  and  uncontrolled  in- 
come, which  was  disposed  of  at  pleasure  during  her  life,  as  mere  pin-vioney, 
and  descended  at  death  to  her  children.  The  property  of  Mrs.  Wehb,  alluded 
to  above,  was  thus  derived.  It  constituted  one-sixlh  only  of  the  whole,  and 
was  sold  years  ago,  by  her  husband,  for  $7,000  —  so  that  my  mother  received 
at  least  $42,000,  the  full  value  of  the  unimproved  property  exchanged  by  her. 
In  truth,  the  whole  transaction  was  to  both  my  father  and  mother  one  of  per- 
fect honor  and  reciprocity  of  interest. 


8 

reputation  which  I  shall  protect  at  all  hazards.  From  the  mass 
of  disconnected  and  detractive  matter,  obtruded  on  that  date 
iipon  the  public,  the  only  points  bearing  upon  the  question  here 
at  issue,  clearly  asserted  and  boldly  upheld  are  the  following : 
1st,  that  J.  W.  Webb  was  only  the  nominal  legal  proprietor  of 
the  Morning  Courier  within  the  dates  specified,  while  Al- 
exander L.  Stewart  was  the  real  and  bona-fide  owner,  and 
J.  W.  Webb,  a  mere  agent,  settling  up  the  affairs  of  the  pa- 
per at  a  weekly  salary ;  2d,  that  he,  J.  W".  Webb,  only  ap- 
peared to  be  a  hoiToioer  of  money,  while  the  advances  were  in 
truth  on  account  of  Alexander  L.  Stewart  himself;  and  3d, 
that  the  monies  expended  and  sunk  in  sustaining  the  said 
newspaper,  amounting  in  the  course  of  sixteen  months  to  be- 
tween twenty  and  thirty  thousand  dollars  were  expended  and 
simk  by  Mr.  Stewart  himself.  This,  it  is  said,  and  seemingly 
certified  to,  Mr.  Stewart  had  admitted. 

These  three  points  are  exhibited  in  a  plausible,  and,  as  the 
asserter  of  them  evidently  would  have  believed,  unanswerable 
manner.     We  will  show  how  far  this  is  the  case. 

I  might,  were  it  necessary,  rehearse  the  contract  of  the  pur- 
chase of  the  Morning  Courier,  by  J.  W.  Webb,  from  my  father, 
who  held  it  by  an  assignment  under  a  judgment  for  debt,  for 
the  consideration  of  86,850.  The  original  is  in  my  possession, 
in  his  own  hand,  signed  and  executed  on  the  17th  of  Decem- 
ber, 1827,  and  bearing  upon  its  face  and  in  its  entire  spirit, 
every  possible  feature,  of  as  genuine,  bona-fide,  and  irresist- 
ingly  binding  a  contract  as  can  be  drawn.  Passing  this  by,  how- 
ever, I  shall  remain  perfectly  satisfied,  as  I  doubt  not  will  be 
the  reader,  with  my  own  position  in  the  case,  and  the  justice  I 
do  to  the  memory  of  my  father,  by  the  following  brief  passages 
from  an  answer  in  Chancery  filed  under  affidavit  by  J. 
W.  Webb,  as  defendant  in  a  case  pending  before  that  Court, 
April  6th,  in  the  year  1830,  wherein  he  thus  solemnly  declares: 


9 

1st.  "  And  this  defendant  further  answering  says,  andcharges 
the  truth  to  be  that  the  said  Alexander  L.  Steioart  never  was 
a  proprietor  of^  nor  ever  had  any  proprietary  interest  what- 
ever^ in  the  said  newspaper  establishment  called  the  Morning 
Courier^  either  before  or  after  this  defendant  ptirchased  the 
same  /" 

2d.  "  And  this  defendant  further  answering  says,  that  he  con- 
tinued to  conduct  and  regulate  the  said  Morning  Courier  tip- 
on  his  oion  account,  devoting  his  whole  time  and  attention 
thereto,  and  exercising  upon  all  occasions  an  entire  control  over 
its  columns  and  concerns  until  the  month  of  May,  1829,  when 
the  same  was  united  to  the  said  New- York  Enquirer !" 

3d.  "  And  this  defendant  further  ansioering  says,  that  he, 
J,  W.  Webb,  in  sustaining  the  said  newspaper  for  about  sixteen 
months,  had  expended  and  sunk  between  twenty  and  thirty 
thousand  dollars  /" 

J.  W.  Webb  says,  ^^ figures  cannot  lie  /"  I  would  ask,  can 
oaths  in  Chancery  7  And  which  is  to  believed,  the  bold  asser- 
tions, plausible  conclusions  from  false  premises,  and  ingenious 
mystifications  of  his  publication  of  the  17th  inst.,  or  these  aw- 
■yM?er5?«ic?era^(/avi^  which  completely  falsify  the  whole  of  them? 

As  to  the  assertion  that  my  father  abandoned  his  legal  claims 
against  J.  W.  Webb  in  1829,  at  a  time  when  the  advances  by 
him  amounted  to  near  $50,000,  or  at  any  after  period,  and  then 
demanded  and  obtained  a  renewal  of  them  on  discovering  that 
the  union  of  the  Courier  with  the  Enquirer  was  likely  to  be- 
come a  profitable  concern,  it  is  utterly  untrue.  Never  for  one 
moment  was  this  the  case,  as  I  can  prove,  not  only  from  the 
books  and  records  in  my  possession,  but  by  the  testimony  of  at 
least  half  a  dozen  living  witnesses.  There  were  times  both  be- 
fore and  after  the  junction  of  those  papers,  when  my  father,  from 
endless  disappointments  in  the  return  of  vnonies  which  he  had 
been  persuaded  to  advance  from  month  to  month,  on  the  most 

2 


10 

delusive  and  deceptive  demonstrations  of  immediate  and  perma- 
nent benefits  of  the  most  important  kind  to  J.  W.  Webb  and  his 
family,  did  fully  determine  to  "  bloio  up''  the  concern,  as  it  has 
been  expressed,  by  levying  an  execution  upon  it  and  all  its  ap- 
purtenances, to  save  what  he  could  from  the  wreck,  and  "  pocket 
a  loss,"  for  which  there  was  no  remedy.  It  was  under  this  de- 
termination that  the  conversation  with  Mr.  Tylee  adduced 
took  place ;  a  determination  which  my  father  was  afterwards 
led  once  again  to  forego  only  by  the  most  urgent  appeals,  foun- 
ded on  representations  of  the  penury  to  which  his  daughter  and 
her  children  would  be  reduced,  accompanied  by  another  of  J. 
W.  Webb's  convincing  demonstrations,  that  by  sparing  the  es- 
tablishment and  extending  a  little  further  aid,  he  would  soon 
be  in  possession  of  all  his  advances,  and  see  his  son-in-law  and 
family  in  independence. 

J.  W.  Webb  asserts  that,  after  the  25th  of  May,  1829,  "  he 
never  received  or  borrowed  one  solitary  dollar  from  the  estate ;" 
and  also,  that  Mr.  Stewart  constantly  made  one  per  cent,  in  all 
his  monied  transactions  with  him,  by  discounting  his  notes  at 
seven  per  cent.,  while  "  he  himself  always  borrowed  money  at 
six  per  cent."  If  by  "  one  solitary  dollar  "  is  meant  one  dollar 
by  itself  alone,  unaccompanied  by  others,  this  may  be  true  ; 
but,  it  is  also  true  that  my  father's  books  show  that,  within  the 
year  after  May,  1829,  he  received  hundreds  and  thousands  of 
dollars  in  company  with  one  another,  not  only  in  the  payment 
of  J.  W.  Webb's  notes  in  bank,  but  in  cash  on  his  due  bills  du- 
ly entered  with  name  and  date.  The  testimony  of  my  father's 
books,  however,  is  rejected  by  him  —  so  I  will  again  look  to  his 
own  records.  A  note  of  only  five  lines,  addressed  "  to  A.  L.  or 
Robert  Stewart,"  on  Oct.  23d,  1829,  five  months  after  the  above 
date,  in  effect  contradicts  at  once  both  the  above  assertions.  It 
begins  and  ends  abruptly  thus  : 

"  To-morrow  being  Saturday,  we  will  require  $500  this  morn- 
ing. 


11 

"  Mr.  Coster  is  prepared  to  let  you  have  $10,000  on  the  10th 
of  Nov.  at  seven  per  cent.,  payable  at  any  time  you  feel  disposed 
to  do  so.  Yours,  J.  W.  Webb." 

The  $10,000  were  gladly  taken  from  Mr.  Coster,  and  retain- 
ed, for  years,  at  seven  per  cent.,  and  is  one  only  of  many  perma- 
nent loans,  at  the  same  interest,  which  my  father  was  compelled 
to  make  on  his  account. 

J.  W.  Webb  complains,  and  would  have  it  believed  to  be  true 
that  a  debt  of  J.  B.  Skillman,  the  original  proprietor  of  the 
Morning  Courier,  of  a  large  amount,*  forms  a  part  of  my  father's 
alleged  dues  from  him.  This  is  untrue,  and  predicated  only  on 
the  false  ground  of  Alexander  L.  Stewart's  proprietorship  of 
the  Morning  Courier.  The  Answer  in  Chajicery,  before  quoted 
from,  recites  the  whole  of  this  matter.  In  Dec.  1827,  J.  B.  Skill- 
man  owed  my  father  $9,371,  to  save  which  he  was  about  to 
sell  at  sheriff's  sale  the  Morning  Courier,  with  all  its  properties. 
Instead  of  doing  so,  however,  at  the  earnest  persuasion  of  J.  W. 
Webb,  my  father  sold  to  him  the  assignment  held  by  him  of  that 
establishment  with  its  appurtenances,  the  good  will  included,  as 
before  stated,  for  $6,850  — thus  abandoning  $2,521,  the  balance 
of  J.  B.  Skillman's  debt. 

The  properties  of  the  Morning  Courier  at  the  time,  aside  from 
the  good  will,  are  thus  exhibited  by  J.  W.  Webb,  in  his  own 
hand  writing,  in  a  statement  given  to  my  father  while  the  nego- 
tiation was  pending: 

Due  the  paper  (Morning  Courier)  in  the  country, 

$2,700,  say  good, $2,000 

Due  the  paper  in  the  city,  $8,500,  say  good,         -       7,000 
Press,  types,  (fcc, 2,000 

$11,000 


*  His  brother,  in  the  following  record  of  the  Court,  speaks  of  it  as  $20,000  ! 


12 

Thus  it  is  seen  that  he  received,  at  the  purchase,  property  of 
the  establishment  estimated  in  his  own  exhibit  at  $11,000  good, 
for  a  debit  of  $6,850,  transferred  on  my  fatlier's  books  from  J. 
B.  Skiilman's  account  to  his  own.* 

J.  W.  Webb  complains,  in  his  article  of  the  17th  inst.,  that  the 
alleged  claims  against  him  are  the  accumulations  of  compound 
interest.  If  he  means  by  this  term  aa  exaction  of  interest  which 
the  laws  of  the  State  do  not  sanction,  I  reply  that  the  office  of 
my  father  and  my  uncle  is  the  last  place  in  the  city  in  the  busi- 
ness transactions  of  which,  an  infringement  of  law  or  failure  in 
the  honor  of  gentlemen,  will  be  found.  If  he  means  accumula- 
tions arising  necessarily  from  a  neglect  to  meet  his  obligations 
when  due,  and  constant  changes  in  his  position  of  debtor,  pro- 
posed and  urged  by  himself  in  a  substitution  of  the  documents 
by  which  he  was  bound,  and  the  shifting  of  his  securities,  who 
has  he  to  blame  but  himself,  and  why  did  he  not  prevent  such 
forms  and  amounts  of  interest  by  cancelling  his  debt?  My 
father  was  paying  interest  to  others  for  the  very  money  drawn 
from  him  by  J.  W.  Webb,  and  why  should  it  be  thought  un- 
generous or  a  reproach  in  him,  to  expect  and  charge  interest  so 
long  as  his  advances  remain  unpaid  ? 

And  why  were  not  those  advances  returned?  Had  not  J. 
W.  Webb  the  means  ?  Let  his  mode  of  life  during  the  whole 
period  of  his  indebtedness  give  the  answer.  He  was  in  the  re- 
ceipt at  the  time,  from  the  Courier  &  Enquirer,  of  the  avowed 
income  of  some  $20,000  above  all  expenses,  and  was  living  daily 
in  a  style  unsurpassed  by  any  gentleman  of  the  city.  In  the 
winter,  at  his  own  magnificent  dwelling  in  Carroll-place,  or, 
with  a  large  family  of  children  and  servants,  in  the  finest  suites 
of  rooms  at  the  City  Hotel  or  the  Astor  House  ;  and  in  the  sum- 
mer at  a  beautiful  country-seat,  his  own  purchase,  surrounded 

*  See  contract  of  purchase  by  J.  W.  Webb,  Appendix,  Letter  F. 


13 

by  all  the  appointments  and  appliances  of  wealth  and  luxury, 
including  a  well-filled  cellar  of  the  most  choice  and  expensive 
wines,  gardens  and  grounds  of  great  extent  and  beauty,  adorned 
by  a  conservatory  of  splendid  exotics,  while  his  barns,  with 
stables  for  a  breed  of  race-horses,  were  in  like  extravagance. 
Such  were  some  of  the  lavish  expenditures  for  years  of  the 
debtor,  who  would  have  it  believed  that  he  has  been  hardly 
dealt  with  by  having  just  interest  charged  on  the  loans  of  a  cred- 
itor, who  with  his  own  family  was  living,  the  year  round,  in  a 
plain  and  old-fashioned  residence  in  Hudson-street,  in  a  quietude 
and  comparative  simplicity  which,  however  much  that  of  choice, 
was  nevertheless  in  a  great  measure  the  result  of  necessity,  from 
the  absorption  of  his  floating  resources  in  the  devouring  whirl- 
pool of  the  Morning  Courier,  and  which  is  known  often  to  have 
given  rise  to  invidious  remark,  in  the  circles  of  society  in  which 
himself  and  family  moved. 

I  will  state  one  additional  fact  only.  To  this,  however,  I  would 
invite  the  special  attention  of  the  reader,  in  connexion  with  the 
principal  point  in  the  opposing  testimony  produced  by  J.  W. 
Webb  in  the  subjoined  record.  Previous  to  the  illness  of  my 
uncle  Robert  Stewart,  the  estate  was  indebted  to  me  $53,000, 
and  for  which  I  had  very  little  or  no  security.  When  it  ap- 
peared probable  that  my  uncle  might  not  long  survive,  I  be- 
came exceedingly  anxious,  from  considerations  disconnected 
with  any  selfish  interest,  to  have  this  debt  secured  to  me,  and 
strongly  urged  the  necessity  of  it  upon  him  myself,  and  begged 
my  sister,  Mrs.  Charles  Stewart,  her  husband,  and  my  uncle's 
counsel.  Gen.  Sandford,  to  go  to  him  and  earnestly  persuade 
him  to  this.  This  they  did ;  but  to  all  importunity  on  the  sub- 
ject he  replied,  that  he  could  not,  in  honor  to  other  creditors, 
secure  me  ;  and  that  if  anybody  was  to  lose  by  the  estate,  it  must 
be  one  of  his  own  blood.  This  continued  to  be  resolutely  his 
determination,  till  it  was  proposed  to  effect  the  object  by  a  pur- 


14 

chase  on  my  part  of  the  real  property  of  the  estate,  in  which  my 
debt  should  be  received  as  a  first  payment,  and  my  bonds  and 
mortgages  taken  for  the  balance  of  the  purchase  money,  for  the 
security  and  payment  of  the  remaining  creditors. 

To  this  plan  he  at  once  acquiesced ;  became  anxious  for  its 
execution ;  and  was  impatient  till  it  was  accomplished.  It  is  to 
this  transaction,  related  in  detail  by  me  to  the  brothers  of  J. 
W.  Webb,  in  the  conversations  referred  to  in  their  testimony  — 
in  which  the  Will  of  my  uncle  was  also  a  topic,  —  and  to  this 
only  that  all  the  importunity  with  my  uncle  of  myself,  my  sister, 
and  her  husband,  and  his  counsel,  as  stated  by  me  to  them, 
had  reference,  or  was  true.  In  applying  it  to  the  changing  of 
my  uncle's  will,  in  place  of  thus  securing  my  debt,  they  have 
made  a  mistake,  by  confounding  in  their  recollections  one  part 
of  my  conversation  with  another,  which,  however  much  to  be 
regretted,  is  not  to  be  pronounced  impossible  in  an  interview  of 
hours  upon  a  single  subject. 

This  importunity  for  the  security  of  my  debt,  is  the  only  im- 
portunity ever  exercised  by  me  with  my  uncle,  either  by  my- 
self, or  through  the  influence  of  others.  His  Will  of  1838  is 
in  my  own  hand  writing  ;  in  copying  it  for  his  signature  my 
uncle  told  me  the  reason  for  the  deduction  of  the  $17,000  from 
Mrs.  Webb's  share  ;  and  that  although  my  father  had  been  obli- 
ged to  relinquish  his  legal  claims  to  that  sum  in  compromising 
with  her  husband,  he  had  ever  considered  it  due  in  equity  to 
his  estate  ;  and  it  had  ever  been  my  father's  determination  as  it 
was  his,  to  deduct  it  from  the  wife's  share.  With  the  making 
of  his  last  Will,  I  had  nothing  to  do.  It  is  contrary  to  my 
wishes,  as  I  have  ever  asserted,  and  again  assert,  and  at  a 
sacrifice  both  of  health  and  pleasure,  that  the  estate  in  its 
embarrassments  was  left  in  my  hands.  In  receiving  the 
Will  from  my  uncle,  which  I  did  only  from  what  I  con- 
ceived, and  what  he  knew,  to  be  an  imperative  necessity  in  the 


15 

case,  I  gave  no  pledge  or  promise  as  to  the  final  disposal  of  the 
property,  nor  did  he  ever  exact  such  pledge  or  promise,  or  ever 
give  me  any  instructions,  or  express  any  wishes,  in  reference  to 
it,  either  before  or  after  the  time  of  its  execution.  My  uncle, 
however,  well  knew,  from  the  very  best  of  proofs,  what  I  have 
ever  declared,  and  now  again  avow,  that  in  reference  to  this 
whole  matter,  I  have,  and  ever  have  had,  but  one  object  at  heart, 
and  one  purpose  to  fulfil  —  which  is,  to  secure,  to  the  utmost 
of  my  ability,  the  best  interest  of  my  sisters  and  their  families  ; 
and  not  less  that  of  my  sister  Helen  L.  Webb  and  her  children, 
than  of  the  rest. 

LISPENARD  STEWART. 

Hudson-Street,  New-York,  ) 
January  24,  1844.  \ 


SURROGATE'S  COURT. 


In   the   matter   of  proving  the  )  g^^^^^^^^,^  ^ 

last  Will   and  Testament  of  ^      September  11,  1843. 
Robert  Stewart,  deceased.  )  ^ 

Charles  W.  Sandford,  a  witness  produced,  sworn  and 
examined  in  support  of  the  will,  being  duly  sworn,  deposeth 
and  suith,  I  am  by  profession  a  counsellor  at  [law,  and  reside 
in  the  city  of  New-York.  I  was  intimately  acquainted  with  the 
testator,  Robert  Stewart,  for  about  twenty-eight  years.  The  will 
being  shown  to  him,  he  says  he  was  present,  and  saw  Robert 
Stewart  sign  the  said  will,  and  declare  that  it  was  his  last  will 
and  testament.  The  will  is  dated  and  was  executed  on  the 
third  day  of  May,  eighteen  hundred  and  forty -three:  the  sub- 
scription to  the  will  was  made  by  the  testator  in  my  presence, 
and  after  signing  it  he  published  and  declared  it  to  be  his  last 
will  and  testament.  Mr.  Stewart  then  requested  Mr.  Gerring 
and  myself  to  subscribe  the  same  as  witnesses,  which  we  did  in 
the  presence  of  the  testator :  I  saw  Mr.  Gerring  subscribe  as  a 
witness.  The  testator,  at  the  time  of  the  execution  of  this  will, 
was,  as  I  have  understood  and  believe,  upward  of  eighty  years 
of  ao-e.  I  believe  that  the  testator  was,  at  that  time,  of  sound 
mind  and  memory,  and  in  all  respects  competent  to  make  a 

will. 

C.  W.  SANDFORD. 

Sworn  before  me  this  Wth  day  of  September^  1843. 

David  B.  Ogden. 

The  case  was  then  adjourned  upon  motion  of  Col.  Webb,  on 
account  of  the  absence  of  Mr.  Hall,  his  counsel. 

Monday.,  September  18th,  1843.  The  witness  being  cross- 
examined,  says  :  the  will  is  in  my  hand  writing.  Mr.  Stewart 
di^:?,  I  think,  the  latter  end  of  June  —  I  think  on  the  26th  day 
of  that  month.  I  drew  the  will  the  night  before  it  is  dated,  at 
my  office  —  there  was  nobody  present  when  I  drew  the  will  — 

3 


18 

I  received  the  instructions  for  the  drawing  of  the  will  from  the 
testator  —  I  received  these  instructions  abont  a  week  before  I 
drew  the  will  —  I  saw  Mr.  Stewart  once  after  he  gave  me  the 
instructions  and  before  the  will  was  drawn  —  I  think  this  was 
about  two  days  before  the  will  was  drawn  —  I  do  not  remember 
that  any  body  was  present  at  the  last  mentioned  interview.  When 
I  received  the  instructions  for  the  will,  nobody  was  present  but 
the  testator  and  myself 

Question.  Did  he  assign  any  reason  for  making  the  will  in 
its  present  form  ? 

Answer.  He  did. 

Q.  What  were  the  reasons  he  assigned  ? 

A.  He  assigned  several  reasons.  We  had  at  several  previous 
interviews  at  different  times,  talked  of  altering  or  redrawing  his 
will ;  and  I  had  advised  with  him  as  to  the  best  mode  of  dispo- 
sing of  his  estate,  and  had  recommended  a  different  course  from 
the  one  contained  in  this  will.  At  the  interview  in  which  I 
received  the  instructions,  he  told  me  that  he  had  made  up  his 
mind  to  leave  the  whole  estate  to  Lispenard,  and  he  expressed 
to  me  his  reasons  for  so  doing:  that  his  estate  was  not  worth 
dividing  as  I  had  proposed  ;  that  it  should  be  kept  together,  and 
thus  be  better  able  to  sustain  the  litigation  then  pending,  and 
that  Lispenard  had  shown  himself  so  good  a  brother  that  he  was 
satisfied  that  it  was  more  to  the  interest  of  his  sisters  to  have 
them  under  the  care  of  Lispenard,  than  to  have  the  property- 
wound  up  and  sacrificed  when  the  share  which  each  would  get 
would  soon  be  squandered  or  wasted.  By  the  shares  which 
each  would  get,  I  mean  the  shares  which  each  would  get  in  the 
way  I  had  proposed.  I  discussed  the  matter  with  him  at  this 
time,  and  left  him,  he  asking  me  to  make  a  draft  of  such  will 
as  he  wished  to  have  drawn,  which  I  promised  to  do  in  a  day 
or  two. 

I  had  another  matter  at  this  time  in  charge  for  him,  and  after 
a  day  or  two  he  sent  word  that  he  wanted  to  see  me  on  this 
other  subject.  I  went  to  see  him,  and  he  spoke  to  me  again 
about  the  will.  At  this  interview  I  asked  him  if  he  still  wished 
to  have  it  drawn  in  the  way  he  had  mentioned,  I  having  some 
hope  that  he  had  changed  his  mind.     He  still  persisted  in  his 


19 

directions,  and  I  as^ain  promised  to  draw  the  will  as  directed. 
I  was,  however,  very  busy  during  the  succeeding  two  or  three 
days,  and  did  not  draw  the  will  until  I  received  another  mes- 
sage from  him,  requesting  me  to  see  him  on  the  afternoon  of  the 
second  of  May.  1  had  not  then  drawn  the  will,  and  I  sent  him 
word  that  I  could  not  see  him  that  afternoon,  but  that  I  would 
call  upon  him  at  about  eight  o'clock  the  next  morning.  I  drew 
the  will  that  evening;  and  the  will  now  offered  for  probate  is 
the  original  draft  made  by  me.  The  next  morning  I  took  it  up 
and  read  it  to  him;  and  after  it  was  read,  finding  that  he  ap- 
proved of  it,  I  proposed  to  engross  it,  and  have  it  executed  the 
next  day.  He  said,  however,  that  it  was  clear  enough,  and  he 
would  execute  it  as  it  was.  He  proposed  to  send  to  his  neigh- 
bor Dr.  Hunter,  as  a  witness  to  the  will.  I  suggested  that  he 
might  as  well  execute  it  before  one  of  his  own  clerks.  Mr. 
Gerring  was  then  sent  for,  and  the  will  was  executed. 

Q.  Are  these  all  the  conversations  you  had  with  Mr.  Stewart, 
and  all  the  instructions  given  and  reasons  assigned  by  him,  for 
the  makinfr  the  will  as  it  now  is? 

A.  No.  We  had  several  conversations  on  the  subject  of  ma- 
king his  will,  but  Mr.  Stewart  had  never  given  me  any  direc- 
tions to  prepare  a  will  until  the  conversation  above  mentioned. 

Q.  What  passed  in  those  several  conversations;  when  and 
where  were  they  held  ;  and  in  whose  presence  ? 

A.  These  conversations  took  place  sometimes  at  my  resi- 
dence, where  Mr.  Stewart  was  in  the  habit  of  frequently  calling 
for  several  years  almost  weekly,  and  sometimes  daily.  And  I 
have  also  occasionally  conversed  with  him  on  this  subject  at 
his  own  office.  But  Mr.  Stewart  never  spoke  to  me  upon  the 
subject  of  his  will,  nor  T  to  him,  in  the  presence  of  any  third 
person,  until  the  time  the  will  was  executed.  These  conversa- 
tions were  so  numerous,  and  so  intermingled  with  other  sub- 
jects, that  it  would  be  almost  impossible  to  detail  them. 

Q.  How  far  back,  in  point  of  time,  did  the  conversations 
concerning  the  making  of  this  will  reach? 

A.  Mr.  Stewart  had  conversed  with  me  I  think  for  two  years 
about  redrawing  his  will.  I  had  drawn  a  former  will  for 
him. 


20 

Q.  When  did  yon  draw  that  former  will  ? 

A.  I  do  not  recollect  the  date  ;  but  it  was  very  soon  after  the 
death  of  Alexander  L.  Stewart  that  this  former  will  was  executed. 

Q.  In  whose  presence? 

A.  I  do  not  recollect.  I  do  Aot  remember  whether  I  was  pres- 
ent or  not  when  it  was  executed.  I  think  Alexander  L.  Stew- 
art died  in  1838,  on  the  29th  of  March. 

Q.  Was  that  former  will  in  existence  when  the  present  will 
was  executed  ? 

A,  I  presume  it  was ;  but  I  have  not  seen  it  for  several  years. 

Q.  Do  you  know  where  it  now  is? 

A.  I  do  not. 

Q.  Have  you  heard  Mr.  Lispenard  Stewart  say  where  it  was 
since  the  death  of  the  testator  ? 

A.  I  have  not. 

Q.  What  was  the  general  character  of  the  former  will  of 
which  you  have  spoken  ? 

A.  That  will  (with  the  exception  of  a  provision  for  the  widow, 
similar  to  the  one  in  the  present  will)  divided  the  property,  after 
the  payment  of  debts,  equally  among  the  children  of  his  brother 
Alexander.  This  was  the  general  scope  of  the  will,  but  not 
having  seen  it  for  several  years,  I  cannot  be  more  particular 
about  it. 

Q.  Did  Mr.  Robert  Stewart  never  give  you  any  other  reasons 
for  his  radical  change  in  his  will  than  those  you  have  already 
stated  ? 

A.  Mr.  Robert  Stewart  and  myself  had  previously  discussed 
the  subject  of  an  entire  change  in  his  will,  before  the  directions 
were  given,  and  before  I  was  aware  of  his  intention  to  devise  his 
estate  to  Lispenard  Stewart.  Among  other  reasons  spoken  of  or 
discussed  between  Mr.  Stewart  and  myself,  for  changing  his 
will,  was  the  fact,  that  several  of  the  devisees  in  that  will  were 
important  witnesses  in  the  suits  pending,  in  relation  to  the  will 
of  Alice  liispenard  ;  and  I  had  proposed  to  Mr.  Stewart  a  mode 
of  altering  his  will,  and  retaining  those  witnesses,  without  ma- 
terially changing  his  original  intention. 

Q.  Were  there  any  other  reasons  assigned  by  him? 

A.   So  many  other  things  were  said,  at  different  times,  in 


21 

relation  to  a  change  of  his  will,  that  T  cannot  undertake  to  state 
any  other  reasons  g^iven  by  him  at  this  time  :  those  which  1  have 
given  were  the  principal  reasons. 

Q.  Did  yon  suggest  to  him  that  the  devisees  referred  to  were 
important,  and  might  become  incompetent  witnesses  relative  to 
the  will  of  Alice  Lispenard,  or  did  he  make  the  snggestion  to 
you  ? 

A.  I  do  not  think  the  suggestion  was  made  by  either  of  us, 
Mr.  Stewart  was  as  fully  aware  of  it  as  I  was  ;  but  the  mode  of 
obviating  the  difficulty  was  a  subject  of  discussion  between  us. 
Q.   Were  these  discussions  held  before  the  trial  in  the  Su- 
perior Court,  involving  the  question  as  to  the  competency  of 
Alice  Lispenard  to  make  a  will,  or  afterwards? 
A.  Both  before  and  afterwards. 
Q.  How  long  before  ? 

A.  My  impression  is  that  our  first  conversation  on  the  subject 
was  two  or  three  years  before  that  (rial  ;  possibly  not  so  long 
before. 

Q.  You  have  said  that  you  advised  with  Mr.  Stewart  as  to 
the  best  mode  of  disposing  of  his  estate.  Did  he  ever  ask  your 
advice  as  to  the  best  mode  of  disposing  of  Jt,  or  did  you  make 
ihe  suggestion  voluntarily? 

A.  I  mean  to  say,  that  while  understanding,  as  T  supposed  I 
did,  the  general  intent  of  Mr.  Stewart,  I  suggested  a  mode  of 
effecting  that  intent,  and  still  prevent  the  rejection  of  the  testi- 
mony of  such  of  the  children  of  Alexander  Stewart  as  were 
important  witnesses  in  the  controversy  in  relation  to  the  properly 
of  Alice  Lispenard. 

Q.  What  was  that  intent  to  which  you  refer? 
A.  At  that  time  I  supposed  his  intention  was  to  dispose  of  his 
property  substantially  for  the  benefit  of  the  family  of  Alexander 
L.  Stewart. 

Q.  Was  the  will  now  before  the  Court  Robert  Stewart's  mode 
of  carrying  out  that  intent,  as  expressed  by  him  to  you  ? 

A.  Mr.  Robert  Stewart  said  nothing  about  that  intent  at  the 
time  I  received  his  instructions  for  the  present  will,  except  so 
far  as  it  was  expressed  in  what  he  said  about  Lispenard's  sisters, 
which  1  have  before  detailed. 


22 

Q.  "What  was  the  mode  suggested  by  you  ? 

A.  I  had  suCT^ested  to  Mr.  Stewart,  a  loner  time  before  receiv- 
ing  instructions  for  the  present  will,  that  instead  of  devising  his 
estate  directly  to  the  children  of  Alexander  L.  Stewart,  he 
should  invest  the  share  which  he  proposed  to  give  to  each  of 
the  children  of  Alexander  for  the  benefit  of  their  children,  by 
which  the  parent  would  receive  the  income  as  guardians  for  the 
children,  but  would  not  have  such  an  interest  in  the  estate  as 
to  exclude  them  from  being  witnesses. 

Q.  Did  Mr.  Stewart  tell  yoii  or  suggest  that  the  present  will 
was  intended  to  accomplish  the  same  object,  or  anything  to 
that  effect? 

A.  He  did  not.  This  suggestion  of  mine  had  been  made  a 
long  time  previous  ;  and  I  supposed,  until  the  morning  when  I 
received  instructions  for  ihe  present  will,  that  it  would  be  the 
basis  of  a  new  will,  and  1  spoke  of  it  again  on  receiving  the  in- 
structions. Mr.  Stewart  answered  me  very  decidedly,  that  the 
estate  was  not  vt^orth  dividing.  I  said,  O  yes,  Mr.  Stewart,  it  is 
well  worth  dividing;  it  would  n'lve  them  at  least  twenty  thous- 
and dollars  for  each  share.  His  answer  was,  if  it  had  to  be 
wound  up  to  make  such  a  division,  (moaning  a  division  in  six 
trusts  as  I  had  proposed,)  it  would  not  give  half  that  sum  to 
each  share ;  it  is  better  to  keep  the  estate  together,  and  it  will 
be  better  able  to  go  through  its  difficulties,  (referring  to  the  law- 
suits and  other  difficulties.)  I  was  then  endeavoring  to  raise 
money  for  him. 

Q.  What  did  the  estate  consist  of? 

A.  At  that  time  the  estate  consisted  of  three"  leasehold  lots, 
with  buildings  on  them,  and  thirty-two  lots  in  fee,  on  some  of 
which  are  buildings  owned  by  Mr.  Stewart,  and  some  of  them 
were  under  lease  to  tenants  who  owned  the  buildings  on  them. 
Mr.  Stewart  had  also  some  personal  property  in  the  way  of 
debts  due  to  him,  some  wild  land  in  the  southern  part  of  the 
State,  not  of  much  value,  and  a  mill  site  and  some  land  in  Ohio ; 
but  he  owed  a  large  amount  of  debts,  and  part  of  his  property 
in  this  city  was  mortgaged. 

Q.  How  much  did  the  debts  due  to  him  amount  to,  includ- 
ing bonds  and  mortgages  ? 


23 

^.  I  do  not  know. 

Q.  Were  you  ever  present  when  a  conversation  or  conversa- 
tions was  held  by  Mr.  Stewart  with  any  third  person  in  relation 
to  the  making  of  this  will  ? 

A.  I  have  no  recollection  of  ever  having  been  present  at  any 
such  conversation. 

Q.  Do  you  know  of  any  such  conversation  having  taken 
place  ? 

A.  I  do  not. 

Q.  Did  Lispenard  Stewart  ever  tell  you  that  he  had  had 
such  conversation  with  the  testator. 

A.  Mr.  Lispenard  Stewart  informed  me  since  this  will  was 
executed,  that  he  was  not  aware  until  he  was  called  in  to 
receive  the  will  on  the  morning  it  was  executed,  that  his  uncle 
intended  to  make  him  the  sole  legatee  and  devisee.  I  never 
heard  Lispenard  Stewart  say  that  he  had  conversed  with  his 
uncle  about  this  will.  I  have  never  heard  liispenard  say  any- 
thing about  the  making  this  will  more  than  I  have  stated  as 
having  taken  place  after  the  will  was  executed. 

Q.  Did  you  ever  hear  Robert  Stewart  the  testator  say,  that 
he  had  conversed  with  Lispenard  Stewart  on  the  subject  of 
this  will? 

A.  I  did  not. 

Q.  Did  Robert  Stewart  state  to  you,  or  give  you  to  understand 
that  Lispenard  Stewart  was  to  hold  the  estate  as  well  for  the 
benefit  of  his  sisters  as  for  himself. 

A.  No. 

Q.  Have  you  never  so  stated  to  the  children  of  Alexander 
Stewart? 

A.  No.  I  may  have  stated  what  Mr.  Stewart  said  when  he 
instructed  im  to  draw  the  will  in  relation  to  Lispenard's  sisters, 
as  I  have  already  stated  in  this  examination ;  and  nothing 
beyond  it  as  having  been  said  by  Robert  Stewart  the  testator, 
and  I  may  have  stated  what  I  supposed  or  presumed  were  rea- 
sons with  Mr.  Stewart,  for  making  the  will  in  its  present  shape. 

Q.  Have  you  not  told  Col.  "Webb,  in  the  presence  of  Lis- 
penard Stewart  and  his  sisters,  that  the  reason  which  Robert 
Stewart  had  for  making  his  will  in  its   present  form  was,  to 


24 

remove  the  incompetency  of  such  as  might  be  witnesses  in  the 
matter  of  Alice  Lispenard,  or  words  to  that  eflect? 

A.  I  have  no  doubt  that  I  stated  this  as  one  of  the  reasons 
which  induced  Robert  Stewart  to  make  the  will. 

Q.  Has  not  Lispenard  Stewart  stated  the  same  thing  to  the 
same  persons  in  your  presence,  and  professed  his  readiness  to  put 
the  trust  in  favor  of  his  sisters  upon  paper,  if  it  would  not 
thereby  disqualify  the  witnesses  in  the  case  before  referred  to? 

A.  The  only  conversation  at  which  I  was  present,  and  to 
which  the  two  last  questions  apply,  was  on  the  occasion  of  read- 
ing the  present  will  two  or  three  evenings  after  the  death  of 
Robert  Stewart.  I  attended  at  that  meeting  and  read  the  will 
at  the  request  of  Lispenard  Stewart,  and  made  such  explana- 
tions of  the  motives  of  Mr.  Robert  Stewart  as  1  thought  most 
likely  to  take  off  the  edge  of  the  disappointment  which  was  felt 
by  most  of  the  persons  present  when  the  contents  of  the  will 
were  ascertained  on  that  occasion.  My  impression  is  that  Lis- 
penard Stewart  concurred  in  the  explanation  made  by  me  as  to 
the  motives  of  the  testator,  and  I  understood  him  to  say  further 
that  he  had  no  desire  or  anxiety  to  appropriate  this  estate  to  his  own 
use;  and  if  he  could  with  propriety  get  rid  of  it  consistently 
with  what  he  deemed  the  interest  of  the  family,  he  should 
do  so.  This  is  the  substance  of  what  I  understood  him  to  say  ; 
1  cannot  remember  the  words. 

Q.  Did  not  Lispenard  Stewart  state  on  the  occasion  last 
referred  to  that  the  testator  had  put  the  property  in  his  hands  in 
trust,  and  that  he  intended  to  fulfil  the  trust  accordingly? 

A.  I  never  heard  him  make  any  such  statement  or  anything 
to  the  same  effect. 

Q.  Did  he  not  say  that  he  considered  himself  as  the  trustee 
of  his  sisters,  and  avow  his  determination  to  hold  the  estate  for 
their  benefit ;  and  when  asked  by  Col.  Webb  whether  such  being 
his  intention,  he  was  willing  to  put  the  property  in  trust,  he 
did  not  reply  that  he  was,  if  by  so  doing  he  would  not  disqualify 
the  witness  referred  to ;  and  did  he  not  thereupon  appeal  to  you 
to  know  if  it  could  be  done,  and  did  you  not  say  to  the  persons 
present  that  you  could  not  advise  Lispenard  to  such  a  course, 
because  it  would  disqualify  the  witnesses? 


25 

A.  The  simple  answer  would  be  no ;  but  as  that  might  leave 
some  uncertainty  as  to  that  part  of  the  answer  referred  to,  it 
may  be  proper  for  me  to  state  more  explicitly  that  I  did  not 
hear  Lispenard  Stewart  say  anything  about  his  being  a  trustee 
or  holding  the  property  in  trust,  or  any  words  to  that  effect,  but 
he  repeatedly  expressed  the  idea  that  he  intended  to  apply  the 
residue  of  the  estate,  after  settling  its  affairs,  to  the  benefit  of 
his  sisters,  and  on  one  occasion,  that  evening,  when  he  made 
that  statement,  he  was  asked,  and  I  think  by  Col.  Webb,  whether 
he  would  place  the  estate  in  trust  for  that  purpose,  or  would 
execute  a  declaration  of  trust,  or  some  other  instrument  to 
secure  such  a  disposition  of  the  property ;  and  I  think  I  was 
appealed  to  to  recommend  such  a  course,  and  on  such  appeal, 
I  think  I  said  I  could  not  advise  Lispenard  to  execute  such  a 
paper  ;  that  it  would  incapacitate  the  witnesses  ;  the  discussion  at 
this  time  had  become  very  confused  and  angry,  and  several 
persons  talking  at  a  time ;  and  I  cannot  tell  by  whom  the 
appeal  was  made  to  me. 

(Mr.  Hall  and  Mr.  Jordan  appear  and  contest  the  will  in 
behalf  of  Col.  Webb,  and  his  wife  Helen.*) 

(Adjourned  to  Thursday  on  motion  of  Mr.  Hall.)  Thursday/ 
September  21,  1843. 

The  cross  examination  of  Mr.  Sandford  continued. 
The  record  of  the  will  of  Alexander  L.  Stewart  deceased, 
proved  23d  April,  1838,  was  given  in  evidence  by  the  counsel  of 
Col.  Webb  and  wife,*  who  are  opposing  the  proof  of  the  present 
will.  It  is  admitted  that  no  inventory  of  the  estate  of  Alexan- 
der L.  Stewart  was  filed  in  the  Surrogate's  office.  Mr.  Hall 
also  gives  in  evidence  a  deed  from  Lispenard  Stewart,  trustee, 
party  of  the  first  part,  Robert  Stewart,  party  of  the  second  part, 
and  Charles  Tudor  Stewart,  party  of  the  third  part,  dated  on 
the  1st  of  June,  1843.  Recorded  in  Lib.  437,  page  357;  also 
a  deed  from  Charles  Tudor  Stewart  to  Lispenard,  dated  on  the 
2d  day  of  June,  1843,  recorded  in  Lib.  437,  page  355. 

The  cross  examination  of  Mr.  Sandford  continued  ;  he  being 
asked  whether  he  has  any  knowledge  of  the  two  deeds  just 
mentioned. 

*  See  Mfo.  WajL-'s  Petition  to  the  Court  against  this  use  of  her  name,  Ap. 
pendix,  Letter  B.  4 


26 

A.  Yes  sir.  They  were  drafted  by  me  and  were  executed 
in  my  presence,  and  were  acknowledged  before  me  as  a  com- 
missioner. They  were  executed  on  the  17th  day  of  June  last, 
and  were  acknowledged  at  the  same  time.  They  were  drawn 
between  the  1st  of  June  and  the  17th  of  that  month.  They 
were  drawn  by  the  direction  of  Robert  Stewart  and  of  Lis- 
penard  Stewart.  I  cannot  say  who  first  suggested  having  these 
deeds  drawn,  but  the  transaction  occurred  in  this  way.  Alex- 
ander L.  Stewart  and  Robert  Stewart,  had  been  for  several 
years  indebted  to  Lispenard  Stewart,  to  a  large  amount  for 
monies  lent  by  him  to  assist  them  in  their  business.  In  the 
spring  of  1843,  this  debt  amounted  to  over  fifty  thousand 
dollars,  and  in  consequence  of  the  difficulties  and  embar- 
rassments of  the  estate,  Lispenard  Stewart  had  become  very 
uneasy  about  this  money  ;  he  applied  to  his  uncle  Robert  Stewart 
to  secure  the  debt  in  some  way,  and  I  had  several  interviews 
with  Robert  Stewart  on  the  subject.  Lispenard  wanted  his 
uncle  to  give  him  mortgages,  whicii  he  was  reluctant  to  do,  as  it 
would  prevent  his  raising  monies  then  pressingly  wanted  for  other 
purposes,  and  finallyin  the  course  of  conversation  between  us  and 
Robert  Stewart,  the  suggestion  was  made  that  Robert  Stewart 
should  sell  Lispenard  real  estate  sufficient  to  pay  the  debt.  Sever- 
al subsequent  conversations  took  place  between  me  and  Lispen- 
ard, and  between  me  and  Robert  Stewart,  which  finally  resulted  in 
an  agreement  made  about  the  first  of  June  last,  that  Lispenard 
should  become  the  purchaser  of  all  the  real  estate  in  this  city,  in 
which  Robert  Stewart  was  interested,  subject  to  the  encumbrances 
then  upon  it,  and  that  he  should  execute  mortgages  to  his  uncle  for 
the  balance  of  the  purchase  moneyover  his  own  debt,  and  the  prior 
incumbrances,  to  be  divided  into  such  sums  and  upon  such 
lots  as  Robert  Stewart  should  find  most  convenient  to  negotiate, 
to  raise  funds  to  meet  his  engagements.  Bonds  and  mortgages 
were  accordingly  drawn  and  executed  by  Lispenard  to  his 
uncle  Robert,  amounting  in  the  aggregate  to  fifty -seven  thous- 
and dollars,  under  an  understanding:  that  these  mortg-ages 
should  be  redrawn  and  altered  in  amounts  and  in  the  lots  cover- 
ed by  them,  as  should  be  afterwards  required  by  Robert  Stewart, 
so  as  to  enable  him  the  more  conveniently  to  negotiate  them. 
The  mortgages  were  never  recorded,  but  now  remain  in  my 


27 

possession  unrecorded.  The  bonds  are  also  in  my  possession, 
and  until  the  will  is  proved,  I  did  not  think  it  proper  to  deliver 
them  to  Lispenard  Stewart,  as  I  considered  myself  as  holding 
them  for  the  estate  of  Robert  Stewart.  Mr.  Robert  Stewart  was 
not  present  when  the  bonds  and  mortgages  were  executed. 
They  were  executed  at  my  office.  They  were  executed  some 
days  after  the  deeds  were  executed,  which  was  on  the  17th 
.Tune.  I  had  conversed  with  Robert  Stewart  on  the  day  the 
deeds  were  executed  as  respects  the  division  of  the  amount  and 
of  the  property  to  be  put  in  each  of  the  several  mortgages.  I 
exhibited  to  him  a  memorandum  which  1  had  made,  dividing 
the  sum  and  property,  to  be  put  into  the  different  mortgages. 
He  did  not  precisely  approve  of  this  division,  but  said  1  might 
either  have  the  mortgages  made  out  as  contained  in  my  memo- 
randum, under  the  understanding  that  they  might  be  afterwards 
altered,  or  it  might  be  left  until  he  designated  the  amounts  and 
property  to  be  mentioned  in  each  mortgage.  I  had  the  mort- 
gages drawn,  however,  according  to  my  memorandum,  and  they 
were  executed  accordingly.  I  think  there  are  four  or  five 
separate  mortgages,  and  as  many  bonds.  The  mortgages  were 
regularly  acknowledged  before  me  as  commissioner.  The 
bonds  and  mortgages  bear  the  same  date  as  the  deed  to  Lis- 
penard Stewart,  but  the  acknowledgments  on  the  mortgages 
will  show  the  day  they  were  executed.  I  never  told  Robert 
Stewart  that  the  bonds  and  mortgages  had  been  executed,  and 
were  in  my  possession. 

Q.  What  was  the  condition  of  Robert  Stewart's  health  at  the 
time  these  bonds  and  mortcrasfes  were  executed? 

A.  Robert  Stewart  had  been  confined  to  his  office  and  the 
adjoining  house,  occupied  by  the  family  of  Alexander  Stewart, 
for  nearly  three  months  prior  to  his  death,  in  consequence  of  an 
injury  to  one  of  his  feet.  This  resulted  in  a  running  sore, 
which  kept  reducing  him  until  some  time  in  the  beginnino-  of 
the  month  of  June,  when  I  understood  that  the  sore  was  getting 
better,  and  that  the  general  debility  arising  from  it,  was  some- 
what lessened.  I  have  at  present  no  distinct  recollection  of 
having  seen  him  after  the  17th  .Tune,  although  I  may  possibly 
have  seen  him  once  or  twice  after  that  day.   On  that  17th  June 


28 

he  appeared  to  be  quite  feeble,  and  very  much  reduced,  from  his 
long  confinement ;  but  he  thought  he  was  getting  better,  as  he 
said  ;  but  he  appeared  very  much  emaciated:  for  some  days  after 
this  I  understood  he  was  still  getting  better.  I  so  understood  from 
his  clerks,  and  members  of  his  family,  until  the  day  when  the 
mortgages  were  executed,  when  Lispenard  Stewart  came  to  my 
office  and  said  that  his  uncle  was  much  worse,  and  that  if  any- 
thing was  to  be  done,  it  ought  to  be  done  immediately.  I  said 
I  did  not  know  of  anything  except  that  I  thought  he  should 
execute  those  mortgages,  which  he  accordingly  did,  and  Robert 
Stewart  died  on  that  day,  or  on  the  following  day.  Robert 
Stewart  had  for  many  years  kept  a  bed  in  his  office,  but  whether 
he  died  in  that  room  or  not,  I  cannot  say.  I  always  found  him 
in  the  office  after  his  illness,  and  never  during  his  sickness 
saw  him  in  any  other  place.  When  the  will  of  Robert  Stewart 
was  executed,  it  was  delivered  to  Lispenard  Stewart,  and  it  was 
in  his  possession  on  the  17th  June,  as  I  presume. 

Q.  What  portion  of  the  real  estate  of  Robert  Stewart,  em- 
braced in  the  will,  is  described  in  the  deed  already  spoken  of? 

A.  The  deeds  were  intended  to  convey  all  the  real  estate 
which  Robert  Stewart  was  interested  in,  in  the  city  of  New- 
York.  The  description  of  the  property  contained  in  the  deeds 
covers  all  the  real  estate  in  which  Robert  Stewart  was  interested  in 
the  city  of  New- York,  as  far  as  I  know,  except  an  interest  in 
a  water  grant  lying  opposite  to  some  of  the  property  on  West- 
street,  described  in  the  deed  which  was  part  of  the  property 
devised  by  the  will  of  Alexander  Stewart. 

Q,.  Who  fixed  the  valuation  upon  the  property  conveyed  to 
Lispenard  Stewart. 

A.  A  list  of  the  property  so  conveyed,  with  an  estimate  of 
its  value,  was  made  by  Mr.  Gerring,  the  head  clerk  in  Mr. 
Stewart's  office,  and  submitted  to  me.  I  made  my  suggestions 
on  the  same  paper  in  pencil,  and  took  it  to  Mr.  Robert  Stewart 
and  submitted  it  to  him,  and  he  concurred  in  my  estimation. 

Q.  Had  not  Robert  Stewart,  within  six  months  prior  to  his 
death,  conveyed  or  caused  to  be  conveyed,  directly  or  indirectly, 
to  Lispenard  Stewart,  other  real  estate  than  that  described  in 
the  deeds  ? 


29 

A.  I  do  not  recollect  of  any  such  conveyance. 
Q.  Has  any    such  conveyance  ever   been   made  by  Robert 
Stewart  to  Lispenard,  since  the  death  of  Alexander  Stewart  ? 

A.  Yes.  Robert  Stewart  agreed  to  take  some  land  and  a 
mill  seat  in  Ohio,  in  discharge  of  a  liability  or  claim  held  by 
him,  against  Webb  &  Averill  of  Troy,  and  by  his  direction  the 
deed  for  this  property  in  Ohio  was  made  to  Lispenard  Stewart. 
Q.  Do  you  recollect  any  other  conveyance  '\ 
A.  I  do  not  recollect  of  any  other  excepting  a  deed  that  was 
executed  to  Lispenard  Stewart  of  a  house  and  lot  in  Watts-street, 
which  was  the  subject  of  the  recent  trial  in  the  Superior  Court, 
between  the  heirs  of  Theophilact  Lispenard  and  Mr.  Robert 
Stewart. 

Q.  What  was  the  value  of  the  property  in  Ohio  that  has  been 
mentioned,  and  of  the  house  and  lot  in  Watts-street  ? 

A.  I  do  not  know  the  value  of  the  property  in  Ohio.  Mr. 
Robert  Stewart  supposed  it  might  be  worth  some  six  or  eight 
thousand  dollars  ;  he  took  it  at  a  valuation,  on  the  settlement  of 
the  claim  against  Webb  &  Averill,  for  about  thirteen  thousand 
dollars.  The  house  and  lot  in  Watts-street  was  worth  from 
three  to  four  thousand  dollars. 

Q.  Were  these  two  properties  included  in  the  estimate  which 
you  have  already  spoken  of,   as  being  shown  by  you  to  Robert 
Stewart,  and  as  being  approved  of  by  him? 
A.  No. 

Q.  Did  the  sum  of  one  hundred  and  twelve  thousand  dollars, 
the  consideration  mentioned  in  the  deed  executed  on  the  17th 
day  of  June,  embrace,  according  to  your  belief,  the  whole  value 
of  the  real  estate  of  Robert  Stewart,  in  the  city  of  New- York? 

A.  No ;  that  sum  was  the  consideration  after  deducting  the 
previous  mortgages  on  the  property,  and  an  estimated  sum  to 
pay  the  expenses  of  the  pending  litigation.  The  consideration 
mentioned  in  the  deed,  was  considered  as  the  net  value  of  the 
property,  after  deducting  the  prior  incumbrances  and  the  esti- 
mated sum  for  the  expenses  of  the  litigation.  Robert  Stewart,  on 
the  j&rst  of  June,  was  indebted  to  Lispenard  Stewart  to  an 
amount  exceeding  fifty-four  thousand  seven  hundred  dollars  ; 
and  this  sum,  with  the  fifty-four  thousand  dollars  before  spoken 
of,  formed  the  consideration  expressed  in  the  deed. 


30 

Q.  At  what  sum  were  the  expenses  of  the  litigation  estimated  ? 

A.  I  estimated  them  at  ten  thousand  dollars,  but  Mr.  Robert 
Stewart  altered  the  amount  to  seven  thousand  dollars. 

Q.  What,  in  your  opinion,  is  the  value  of  the  personal  property 
left  by  Robert  Stewart,  at  the  time  of  his  death  ? 

A.  I  have  not  seen  any  list  of  debts  or  securities  belonging  to 
his  estate,  nor  have  I  examined  his  books,  either  before  or  since 
his  death :  my  knowledge  on  the  subject  is  derived  solely  from 
the  constant  habit  of  Mr.  Robert  Stewart  of  consulting  me  re- 
specting his  affairs  for  many  years  past.  In  this  way,  I  have 
derived  a  general  knowledge  of  his  estate ;  and  had,  prior  to  his 
death,  an  impression  that  his  whole  property,  real  and  personal, 
prior  to  the  conveyance  to  Lispenard  Stewart,  was  worth  from 
one  hundred  and  twenty  to  one  hundred  and  fifty  thousand 
dollars,  after  payment  of  his  debts.  At  Mr.  Stewart's  request,  I 
had  drawn  for  him,  a  year  or  two  previous  to  his  death,  an  affi- 
davit, that  he  was  worth  no  personal  property  whatever,  after 
the  payment  of  his  debts ;  of  the  truth  of  which  affidavit  I 
have  no  doubt.  I  continued  under  the  impression  which  I  have 
above  stated,  until  the  conversation  about  his  will,  which  I  have 
above  stated,  in  which  conversation  Mr.  Stewart  estimated  his 
estate  so  much  lower  than  I  did,  as  to  change  my  opinion  mate- 
rially on  the  subject.  My  present  impression  is,  that  the  per- 
sonal estate  of  Robert  Slewart,  including  the  bonds  and  mort- 
gages executed  by  Lispenard  Stewart,  was  not  worth,  at  the 
time  of  his  death,  over  one  hundred  thousand  dollars,  after  the 
payment  of  his  debts. 

Q.  Do  you  think  that  in  the  estimate  you  made  of  the  real 
estate  of  Robert  Stewart,  you  placed  it  at  its  real  value? 

A.  I  estimated  it  at  as  much  as  I  thought  it  would  bring  in 
the  market  at  that  time,  and  at  as  much  as  I  would  have  been 
willing  to  have  given  for  it  had  I  been  desirous  of  purchas- 
ing it. 

Adjourned  to  Tuesday  morning  next,  10  o'clock. 

Tuesday,  September  26,  1843.  The  further  examination  of 
Mr.  Sandford  suspended  by  agreement. 

Oct.  3.     The  cross  examination  of  Mr.  Sandford. 

Q.  Was  Robert  Stewart,  at  or  previous  to  the  execution  of 


31 

his  last  will  and  testament,  under  any  restraint  of  any  nature  or 
kind,  to  the  best  of  your  knowledge  ? 

A.  Not  in  the  least,  to  my  knowledge. 

Q.  For  how  many  years  previous  to  his  death  had  you  been 
in  the  habit  of  confidential  intercourse  with  him'/ 

A.  I  was  well  acquainted  with  Robert  Stewart  about  twenty- 
seven  years,  and  for  upwards  of  twenty  years  in  the  habit  of 
confidential  intercourse  with  him. 

Q.  What  was  the  state  of  his  mind,  and  his  capacity  for  bu- 
siness during  that  time  ? 

Jl.  Considerably  above  mediocrity.  Robert  Stewart  was  un- 
questionably a  man  of  great  sagacity,  of  great  reflection,  and  of 
much  more  than  ordinary  strength  of  mind. 

Q.  Was  there  any  perceptible  difference  in  his  mental  facul- 
ties at  the  time  of  the  execution  of  his  last  will,  compared  with 
the  time  of  the  execution  of  his  will,  shortly  after  the  death  of 
Mr.  Alexander  L.  Stewart,  or  prior  thereto  1 

A.  I  think  his  mind  and  judgment,  at  the  time  of  the  execu- 
tion of  his  present  will,  were  as  sound  as  they  ever  were.  From 
the  death  of  Alexander  Stewart  until  May,  1842,  I  saw  Robert 
Stewart  generally  every  morning,  except  Sundays.  When  I 
was  in  town,  my  residence  at  that  period  was  in  his  immediate 
neighborhood,  and  he  was  in  the  habit  of  calling  on  me  at  an 
early  hour  every  day  in  relation  to  his  business.  In  May.  1842 
I  removed  to  Warren-street  ;  and  after  that  his  calls  upon  me 
were  less  frequent;  but  I  continued  to  see  him  down  to  his  last 
illness  two  or  three  times  a  week  ;  and  from  all  these  opportu- 
nities I  speak  with  great  confidence  as  to  his  mental  capacity 
during  this  whole  period. 

Q.  Did  he  at  the  time  of  his  death,  or  had  he  for  some  time 
previous  thereto,  lived  with  his  wife,  and  upon  what  terms  were 
they  ? 

A.  They  had  not  been  on  good  terms  for  many  years.  Mr. 
Stewart  had  been  for  many  years  under  the  belief  that  she  en- 
tertained feelings  hostile  to  his  interest,  and  was  not  disposed  to 
do  any  thing  for  her  more  than  duty  required.  He  lived  prin- 
cipally at  his  office  — took  his  meals  there  — and  a  great  part 
of  his  time  slept  there ;  and  going  to  the  house  where  she  re- 


32 

sided  only  for  the  purpose  of  preventing  her  from  saying  that 
he  had  abandoned  her.  In  the  first  will,  which  I  have  spoken 
of  in  this  examination,  he  left  her  only  two  hundred  and  fifty 
dollars  a  year  ;  and  although  frequently  urged  by  me  to  in- 
crease considerably  the  provision  intended  for  her,  he  refused  to 
make  it  exceed  three  hundred  dollars,  the  amount  expressed  in 
the  present  will. 

Q.  If  the  claim  involved  in  the  controversy  relating  to  the 
estate  of  Alice  Lispenard,  deceased,  should  ultimately  be  estab- 
lished, what  will  be  the  effect  thereof  upon  the  real  estate  of 
which  Alexander  L.  Stewart  died  seized,  and  upon  the  title  to 
the  thirty-two  lots  of  land,  mentioned  in  your  direct  examina- 
tion ? 

A.  If  the  will  of  Alice  Lispenard  and  the  conveyance  made 
by  her,  which  is  in  controversy,  should  be  set  aside,  it  will  affect 
one-sixteenth  of  the  whole  estate  left  by  Anthony  Lispenard. 
These  thirty-two  lots  form  a  part  of  that  estate,  and  the  title  to 
these  lots  would  be  affected  to  the  extent  of  one-sixteenth  part. 

Q.  Besides  the  effect  upon  the  title  of  these  thirty-two  lots, 
would  the  estate  of  Robert  Stewart  be  exposed  to  loss  or  lia- 
bility in  other  respects,  if  that  controversy  should  be  decided  in 
favor  of  the  claimants? 

A.  It  would  be  exposed  to  a  very  serious  and  probably  to  a 
ruinous  litigation  ;  partly  from  covenants  of  warranty,  which 
would  no  doubt  be  put  in  suit,  and  partly  from  proceedings  in 
partition,  in  which  the  parties  would  be  so  numerous  as  to  cause 
great  expense  and  probably  much  litigation. 

Q.  What  was  the  state  of  the  controversy  above  referred  to, 
at  the  time  of  the  execution  of  the  last  will  and  testament  of 
Robert  Stewart  and  at  the  time  of  his  death? 

A.  One  of  the  suits  in  ejectment,  brought  by  the  children  of 
Theophilact  Lispenard  upon  one  of  these  lots,  had  been  tried 
and  a  verdict  rendered  for  the  plaintiffs.  Under  numerous  excep- 
tions taken  on  the  part  of  the  defendant,  Robert  Stewart,  at  the 
time  of  his  death,  it  had  been  decided  to  apply  under  the  statute 
to  vacate  the  judgment  entered  upon  that  verdict,  and  to  have  a 
new  trial  in  the  Superior  Court. 

Q.  Was  any  person,  and  whom,  present,  at  the  time  of  the 


33 

execution  of  the  last  will  and  testament,  besides  the  testator  and 
the  subscribing  witnesses  ? 

A.  After  Mr.  Gerring  was  sent  for  to  come  and  witness  the 
will,  Mr.  Stewart  sent  in  for  Lispenard  Stewart,  who  came  into 
the  room  and  was  present  when  the  will  was  executed.  Imme- 
diately after  the  execution  of  the  will,  Mr.  Robert  Sewart 
handed  it  to  him,  and  he  was  the  only  person  present  to  the  best 
of  my  recollection,  besides  the  testator  and  the  subscribing 
witnesses. 

Q.  When  Mr.  Robert  Stewart,  handed  the  will  to  Lispenard 
Stewart,  or  at  any  other  time  within  your  knowledge,  did  the 
testator  declare  or  intimate  that  it  was  subject  to,  or  in  any  man- 
ner connected  with,  any  trust,  expressed  or  implied? 

A.  I  never  heard  any  thing  of  the  sort. 

CHAS.  W.  SANDFORD. 

Sworn  before  me  this  3rd  day  of  October,  1843. 

David  B.  Ogden. 

William  B.  Gerring,  a  witness,  produced,  sworn  and  ex- 
amined in  support  of  the  will,  deposes  and  says :  1  was  ac- 
quainted with  the  deceased,  Robert  Stewart,  from  April,  1835, 
to  the  time  of  his  death.  I  was  during  the  whole  of  that  period 
a  clerk  in  his  office  —  first  with  Alexander  L.  Stewart,  and  after 
his  death,  with  Robert  Stewart.  The  will  being  shown  to  him, 
he  says  he  was  present  at  its  execution.  I  saw  Robert  Stewart, 
execute  it;  I  saw  him  sign  it,  and  heard  him  acknowledge  it  to 
be  his  last  will  and  testament.  He  called  me  into  the  office 
and  asked  me  to  witness  his  will.  I  subscribed  my  name  as  a 
witness  to  the  will,  and  I  saw  Mr.  Sandford  subscribe  his  name 
to  it  as  a  witness,  in  the  presence  of  the  testator.  I  believe  Mr. 
Stewart  was  eighty-one  years  old  when  the  will  was  executed, 
and  of  a  perfect,  sound  mind,  and  was  under  no  restraint,  not 
the  slightest,  that  I  ever  perceived.  On  the  morning  the  will 
was  executed,  I  was  sent  for  to  my  boarding  house.  Mr. 
Price,  a  clerk  in  the  office,  came  for  me.  At  the  time  the  will 
was  executed,  Mr.  Stewart  had  been  confined  to  the  house  for 
two  or  three  weeks ;  I  think  in  consequence  of  an  injury  to  one 
of  his  feet.     He  had  a  sore  on  one  of  his  feet,  which  obliged 

5 


34 

him  to  keep  his  foot  upon  a  chair.    I  do  not  know  whether  the 
sore  was  occasioned  by  an  injury  or  not.     He  told  me,  on  the 
morning  of  the  election,  in  April,  when  he  asked  one  of  us  to 
go  up  to  the  polls  with  him,  that    he  had   hurt  his  foot ;  with 
the  exception  of   this  sore  on  his  foot,  1  believe  his  health  was 
good.     During  the  whole  time  of  his  confinement,  he  continued 
to  transact  business  down  to  the  day  of  his  death,  with  the  ex- 
ception of  one  day.  I  never  knew  any  change  in  his  capacity  to 
transact   business.     This  was  three   or  four  weeks  before  his 
death.    When  I  came   to  the   office  that  day,  a  cot  had  been 
brought  into  the  back  office ;  he  was  lying  on  it,  and  his  mind 
seemed  to  wander  a  little.    Mrs.  Stewart,  and  I  think  Mr.  Lispe- 
nard,  were  in  the  room,  standing  by  his  bedside,  and  requesting 
him  to  take  some  nourishment,  and  some  wine;  he  objected  to 
it,  as  he  thought  it  would  keep  up  the  inflammation  in  his  foot; 
he  did,  however,  that  day,  take  some  nourishment  and   drink 
some  wine,  and  in  the  afternoon,  he  said  he  felt  better.      The 
next  day,  when  I  went  to  the  office,  I  found  him  setting  in  his 
chair  and  his  mind  appeared   to  be  the  same  as  usual.     From 
that  time  he  continued  to  drink  a  little  wine  during  the  day, 
and  took  more  nourishing  food,  and  I  did  not  discover  that  his 
mind  was  affected  from  that  time  to  the  day  of  his  death.     On 
the  particular  day  I  htive  mentioned,  he  was  very  weak  ;  he  had 
until  that  day,  ate  very  little,  and  had  discontinued  taking  wine 
for  sometime  before  he  was  confined  to  the  house,  and  was  very 
much   reduced.     During  all  the  time  I  was  in  the  office,  both 
before  and  after  the  death  of  Alexander  L.  Stewart,  he  took  nn 
active  part  in   the  business.     My  engagement  was   both  with 
Alexander  Stewart  and  with  Robert  Stewart ;  my  contract  was 
with  Alexander ;  but  I  was  also  to  do  anything  which  Robert 
Stewart  requested  me  to  do,     Mr.  Robert  Stewart  was  always 
in  the  office  when  I  went  there  in  the  morning,  with  Mr.  Alex- 
ander Stewart  in  the  back  office  ;  they  breakfasted  together  there. 
He  remained  in  the  office  until  generally  about  ten  o'clock,  and 
during  the  time  he  was  in  the  office,  he  appeared  to  take,  and 
did  take,  as  much  interest  in  the  business,  as  Mr.  Alexander 
Stewart.    Alexander,  v/hen  conversing  on  business  with  persons 
in  the  back  office,  would  always  come  into  the  front  office  and 


35 

consult  with  Robert,  in  relation  to  the  business,  and  then  return 
to  the  back  office,  to  the  persons  he  had  been  talkintr  with. 
Alexander,  seldom,  if  ever,  did  any  business  without  consulting 
Robert.  After  Alexander  died,  Robert  took  the  entire  charge, 
and  did  so  to  the  day  of  his  death.  Mr.  Alexander  Stewart, 
during  his  life,  was  the  acting  man  in  the  business  ;  but  he  hardly 
ever  did  any  business  without  first  taking  the  advice  and  coun- 
sel of  Robert  Stewart.  Robert  was  more  in  the  office  than 
Alexander,  who  was  in  bad  health,  and  used  to  ride  and  walk 
out  a  good  deal. 

Q.  What  was  the  character  of  the  mind  of  Robert  Stewart? 

(This  question  objected  to  ;  objection  overruled.) 

A.  His  mind  was  strong.  I  speak  of  his  mind,  generally^ 
with  the  exception  of  the  day  I  have  mentioned,  and  I  speak 
from  an  almost  daily  intercourse  with  him,  for  a  period  of  more 
than  eight  years.  Robert  Stewart  died  on  the  26th  of  June 
last ;  1  was  present  at  his  death. 

WM.  B.  GERRING. 

Sworn  before  me  this  3rd  day  of  October,  1843. 

David  B.  Ogden. 

November  2ith,  1S43. 

Timothy  Toole,  a  witness*  produced,  sworn,  and  examined 
by  Mr.  J.  W.  Webb,  in  opposition  to  the  will,  at  the  time  of  the 
death  of  Mr.  Robert  Stewart.  I  was  employed  by  him  as  a 
servant  about  the  house;  I  was  in  the  habit  of  serving  him 
very  frequently  during  his  last  illness. 

Q.  Did  you  receive  from  any  person,  and  from  whom,  instruc- 
tions to  conceal  his  illness  from  the  public? 

A.  I  received  no  such  instructions. 

Q.  What  were  your  instructions  in  relation  to  speaking 
about  Mr.  Stewart's  illness  ? 

A.  I  had  not  any  instructions  at  all. 

Q.  Were  you  not  told  by  any  of  the  family  that  you  must  not 
mention  Mr.  Stewart's  illness  to  any  body  out  of  the  house  ? 

A.  No,  I  was  not. 

Q.  Did  you  believe  Mr.  Stewart  to  be  dangerously  ill,  until 
the  day  before  his  death  ? 

*  In  support  of  J.  W.  Webb's  published  slanders  —  see  Appendix,  Letter  C. 


36 

A.  I  did  not  believe  that  he  would  live  very  long,  but  I  did 
not  think  there  was  any  immediate  danger. 

Q.  Did  the  family  apprise  you  that  he  was  dangerously  ill, 
or  did  they  lead  you  to  suppose  that  his  life  was  not  in  danger? 

A.  They  never  apprised  me  anything  about  it.  I  did  not 
know  what  they  may  have  thought. 

Q.  Have  you  ever  said  that  you  were  led  to  believe  from  the 
family  that  he  was  not  very  sick  ? 

(Question  overruled.) 

Q.  Did  any  member  of  th3  family  ever  speak  to  you  in  rela- 
tion to  the  nature  of  Mr.  Stewart's  illness,  or  caution  you  against 
speaking  of  it  to  persons  out  of  the  house  ? 

A.  No  sir. 

TIMOTHY  TOOLE. 

Sworn  before  me  this2ith  November,  1843. 

David  B.  Ogden. 

December  1st,  1843. 

Walter  W.  Webb,  a  witness  produced,  sworn,  and  exam- 
ined by  James  W.  Webb,  in  opposition  to  the  will  deposes  and 
says : 

Q.  Have  you  ever  had  any  conversation  with  Lispenard 
Stewart,  in  relation  to  the  will  of  Robert  Stewart  deceased,  and 
in  relation  to  the  circumstances  under  which  it  was  procured? 

A.  In  the  month  of  July  last,  walking  with  Lispenard  Stew- 
art from  his  house  to  Warren-street,  to  the  office,  as  I  understood, 
of  Gen.  Sandford,  he  told  me  that  Mr.  Stewart  was  induced 
to  change  his  will  for  the  purpose  of  making  Mrs.  Stewart 
a  witness ;  and  I  said  I  supposed  to  make  my  brother  a  witness 
too.  He  said  no,  he  did  not  want  my  brother,  that  he  had 
done  more  hurt  than  good  before.*  He  said  that  it  was  some 
time  before  Mr,  Stewart  could  be  convinced  of  the  necessity  of 
changing  his  will,  and  when  he  was  convinced  of  it,  he  became 
impatient  until  it  was  done.  He  said  he  intended  to  give 
the  property  to  his  sisters.  I  told  him  if  that  was  the  case, 
he  had  better  do  it  at  once.  That  if  he  meant  to  give  my 
brother's  wife  anything,  he  could  now  settle  it  at  once,  and  it 
might  be  secured  to  her,  whereas  if  the  will  was  set  aside  and 

*  Henry  L.  Webb,  next  witoeas,  testifies  ttie  exact  reverse,  as  said  by  Lis- 
penard Stewart. 


37 

any  misfortune  should  happen  to  my  brother,  his  wife  might 
lose  the  whole  benefit  of  the  property.  He  said  my  brother 
had  had  his  portion  of  the  estate.  I  then  gave  him  to  under- 
stand that  I  had  been  informed,  that  the  sum  of  twenty  thous- 
and dollars,  charged  against  my  brother  or  his  wife,  was  an 
original  debt  against  Mr.  Skillman,*  somehow  on  account  of 
a  newspaper  called  the  Courier,  and  that  Mrs.  Webb  ought  not 
to  be  charged  with  it.  Mr.  Lispenard  Stewart  told  me  that  he 
had  taken  advice  from  an  eminent  lawyer  other  than  Mr, 
Sandford,  and  that  he  was  advised  to  pursue  the  course  he  had 
taken  ;  and  that  he  should  continue  to  do  so  notwithstanding 
anything  that  my  brother  could  or  intended  to  do.  He  also 
said  that  he  could  do  with  his  own  property  as  he  pleased,  and 
that  he  intended  himself  to  leave  his  sister  Helen,  my  brother's 
wife,  ten  thousand  dollars. 

Q.  Did  he  say  anything  to  you,  and  what,  as  to  the  manner 
in  which  Mr.  Stewart  first  received  the  proposition  to  change 
his  will? 

A.  T  think  that  he  said  to  me  that  we  persuaded  him  to  change 
his  will ;  that  at  first  he  was  unwilling  to  do  it,  and  that  he  did 
not  consent  to  do  it  until  we  convinced  him  that  it  was  neces- 
sary in  order  to  enable  us  to  avail  ourselves  of  the  testimony  of 
Mrs.  Stewart. 

Q.  Did  he  state  in  what  case  it  was  necessary  to  secure  the 
testimony  of  Mrs.  Stewart? 

Jl.  It  was  in  those  suits  depending  brought  by  the  heirs  of 
Alice  Lispenard,  deceased. 

(The  Witness  being  cross  examined  by  Gen.  Sandford,  the 
counsel  supporting  the  will.) 

Q.  What  relation  are  you  to  James  Watson  Webb  ? 

A.  I  am  his  brother. 

Q.  Are  you  in  his  employment,  or  receiving  a  salary,  income, 
or  support  from  him? 

A.  My  brother  James  owes  me  twenty-six  thousand  five  hun- 
dred dollars.  I  hold  his  bond  guaranteed  by  good  personal 
security.  I  am  in  no  way  interested  in  the  matter  now  in  con- 
troversy, and  I  appear  here  with  great  reluctance.     1  receive  the 


*  J.  W.  Webb  assumed  $6350  of  such  debt,  and  received,  in  return,  the 
paper  and  all  its  properties. 


38 

interest  on  my  bond  from  him,  if  this  can  be  called  income.     I 
am  not  in  his  employment. 

Q.  How  soon  after  this  conversation  with  Lispenard  Stewart 
did  you  detail  it  to  your  brother  James  ? 

A.  I  do  not  know  that  ever  I  detailed  it  to  him.  I  will  ex- 
plain the  circumstances.  I  had  mentioned  it  at  Troy,  but  the 
first  time  I  detailed  it  to  my  brother  James  was  when  I  first 
came  down  as  a  witness  in  this  case. 

Q.  Did  you  not  go  to  Mr.  Stewart's  at  the  time  of  the  conver- 
sation you  have  mentioned,  or  at  any  other  time,  by  request  of 
your  brother  James  ? 

A.  No. 

Q.  Nor  upon  his  intimation  ? 

A.  At  the  lime  I  had  this  conversation  with  Lispenard  Stew- 
art, I  do  not  know  that  my  brother  knew  I  was  going  there ; 
but  subsequently,  at  the  time  I  was  here  as  a  witness,  I  told  my 
brother  I  was  going  there  to  see  Mary  and  the  family.  He  told 
me  he  had  made  a  proposition  to  Mr.  Stewart  through  Gen.  Sand- 
ford,  and  he  wished  me  to  tell  Mr.  Stewart  what  the  proposition 
was,  lest  he  might  not  get  it  in  time  before  the  examination  be- 
fore  the  Surrogate.  When  I  went  to  Mr.  Stewart's  I  did  not 
see  Mr.  Lispenard  Stewart;  I  saw  Mr.  Charles  Stewart  and  his 
wife. 

Q.  Did  you,  on  the  day  of  the  conversation  you  have  first 
stated,  go  to  Mr.  Stewart's  at  the  suggestion  of  your  brother 
Henry  L.  Webb  ? 

A,  No  ;   nor  on  the  suggestion  of  any  other  person. 

Q.  Did  Mr.  Stewart,  in  that  conversation,  speak  of  the  large 
amount  of  money  which  was  due  to  him  from  his  uncle  Robert 
Stewart  ? 

A.  I  had  heard  of  it  before,  and  I  knew  that  Robert  Stewart 
was  indebted  to  his  nephew  Lispenard,  and  I  think  Lispenard 
spoke  of  it  in  this  conversation. 

Q.  Did  Lispenard  speak  of  his  anxiety  ta  secure  the  payment 
of  this  debt  ? 

A.  I  think  not. 

Q.  Did  he  speak  about  the  execution  of  a  deed  by  Robert 
Stewart  ? 


39 

A.  I  think  not. 

Q.  Was  any   person  in  company  with  you  and  Lispenard 
during  the  wallc  and  conversation? 
A.  No,  sir. 

Q.  At  what  time  of  day  or  evening  was  it  that  you  left  Mr. 
Stewart's  house  that  day? 

A.  I  think  it  was  in  the  forenoon. 

Q.  What  members  of  Mr.  Stewart's  family  were  present  when 
you  left  the  house? 

A.  Mrs.  Charles  Stewart  and  Eliza  Stewart  were  present,  I 
know.     Mary  may  have  been  there,  I  cannot  be  sure. 

Q.  Did  Mr.  Stewart  in  that  conversation  say  that  he  knew 
anything  of  the  present  will  before  the  day  of  its  execution  ? 
A.  He  did  not  say  that  he  knew  anything  about  it. 
Q.  Did  Mr.  Stewart  in  that  conversation  speak  of  his  own 
knowledge  as  to  the  motives  or  intentions  of  Robert  Stewart,  or 
on  information  which  he  had  derived  from  others? 
A.  I  inferred  that  he  spoke  from  his  own  knowledge. 
Q.  Did  Mr.  Stewart  in  that  conversation  say  that  he  had  ever 
conversed  with  Robert  Stewart  in  relation  to  his  will  ? 
A.  No  ;  not  in  so  many  words. 

Q.  Did  he  say  in  any  words  that  he  had  ever  conversed  with 
his  uncle  about  his  will  ? 

A.  I  inferred  that  he  had,  from  his  using  the  word  *'  «;e,"  as  I 
had  before  stated. 

Q.  What  were  the  words  used  by  him? 
A.  As  I  have  stated  before,  I  cannot  remember  the  very  words. 
He  said,  "  We  persuaded  or  convinced  him  that  it  was  necessary 
to  change  the  will  for  the  purpose  of  availing  ourselves  of  the 
testimony  of  Mrs.  Stewart." 

Q.  Did  he  say,  "  we  persuaded  or  convinced  him,^^  or  did  he 
say,  "Ae  was  persuaded  or  convinced  ?^^ 
A.  I  think  he  used  the  word  "  we." 

Q.  Is  not  your  memory,  as  you  have  experienced  this  morning, 
in  endeavoring  to  recall  to  it  facts  and  circumstances,  very  un- 
certain and  confused,  or  is  it  a  strong  and  tenacious  one  ? 

A.  My  impressions  are  strong,  and  I  think  I  have  detailed  all 
the  facts.     My  memory  is  certainly  not  so  confused  and  uncer 


40 

tain  as  not  to  enable  me  to  detail  the  circumstances  which  I 
have  done.     My  memory  is  of  ordinary  tenacity. 

Q.  When  speaking  of  Mr.  Skillman's  interest  in  the  debt  con- 
tracted for  the  Courier  newspaper,  did  you  speak  of  it  as  twelve 
thousand  or  twenty  thousand  dollars? 

A.  I  spoke  of  it  as  a  debt  of  twenty  thousand  dollars. 

(The  Witness  being  again  examined  on  direct  examination.) 

Q.  Have  you  any  doubt  in  your  mind  whether  Mr.  Lispenard 
Stewart,  in  the  conversation  referred  to,  used  the  word  "  we." 
alluding  to  the  persons  who  persuaded  Mr.  Robert  Stewart  to 
change  his  will '/ 

^3.  I  have  no  doubt  upon  that  point. 

(The  witness  being  again  cross  examined.) 

Q.  Why  then,  in  your  previous  examination,  both  direct  and 
cross,  did  you  speak  of  its  being  your  impression,  and  that  you 
thought  he  used  the  word  "w;e,"  instead  of  testifying  positively  ? 

^.  My  impression  is  so  strong  that  I  cannot  doubt  it. 

Q.  Is  your  memory  so  accurate  that  you  can  repeat  words 
used  in  conversation  after  the  lapse  of  several  months? 

.,4.  I  can  repeat  the  substance. 

WALTER  W.  WEBB. 

Sworn  before  me  this  1st  December,  1843. 

David  B.  Ogden. 

Deposition  of  witnesses  produced,  sworn,  and  examined,  the 
thirteenth  day  of  December,  in  the  year  eighteen  hundred  and 
forty-three,  at  New-Orleans,  under  and  by  virtue  of  a  commis- 
sion issued  by  and  under  the  official  seal  of  the  Surrogate  of 
the  County  of  New-York,  in  a  certain  matter  of  the  last  will 
and  testament  of  Robert  Stewart,  deceased,  pending  before  the 
Surrogate  of  the  County  of  New-York,  as  follows,  viz: 

Henry  L.  Webb,  of  the  city  of  New-Orleans,  merchant, 
aged  forty-eight  years  and  upwards,  being  duly  and  publicly 
sworn,  pursuant  to  the  directions  contained  or  annexed  to  said 
above  commission,  and  examined  on  the  part  of  James  Watson 
Webb,  doth  depose  and  say  as  follows,  viz  : 

To  the  first  interrogatory  he  answers  and  says,  that  his  name 
is  Henry  L.  Webb  —  that  his  age  is  forty-eight  years — his  resi- 


41 

dence  is  in  New-Orleans  —his  profession  is  a  commission  mer- 
chant. 

To  the  second  interrogatory  he  answers  and  says,  that  he  did 
know  the  late  Robert  Stewart  of  New- York  in  his  lifetime,  and 
that  he  is  acquainted  with  Mr.  Lispenard  Stewart,  the  nephew 
of  the  deceased  ;  that  he  knew  him  in  New-York,  and  has  been 
acquainted  with  him  since  the  fall  of  1833. 

To  the  third  interrogatory  he  answers  and  says,  that  the  said 
Lispenard  Stewart  did  converse  with  him  on  the  subject  of 
making  and  executing  the  supposed  last  will  and  testament  of 
Robert  Stewart,  deceased,  at  his  house  in  Hudson-street,  in  the 
city  of  New- York,  on  the  twenty-first  day  of  July  last  past,  in 
the  eveninof. 

To  the  fourth  interrogatory  he  answers  and  says,  that  on  the 
evening  of  the  21st  day  of  July  last,  he  called  at  the  house  where 
the  Stewart  family  reside,  in  Hudson-street,  in  the  city  of  New- 
York,  to  see  Mrs.  Mary  J.  Webb,  the  wife  of  his  brother  Ste- 
phen H.  Webb,  he  havmg  learned  during  the  day  that  she  was 
to  leave  the  city  the  next  morning  for  Troy  ;  that  he  had  heard 
of  a  difficulty  between  his  brother,  James  Watson  Webb,  and 
Lispenard  Stewart,  and  should  not  have  visited  the  house  had 
it  not  been  to  have  seen  said  Mrs.  Webb,  whom  he  had  not  seen 
for  fifteen  years.  Soon  after  he  was  in  the  house,  Mr.  Lispe- 
nard Stewart,  or  one  of  his  sisters,  began  to  converse  with  him 
about  the  family  quarrel,  when  he  requested  them  to  desist,  tel- 
ling them  he  Jmew  a  difficulty  existed  between  them  and  his 
brother,  James  Watson  Webb,  but  that  he  could  not  interfere  or 
interest  himself  in  the  matter ;  adding,  that  he  had  only  come 
to  see  his  sister  Mary,  as  he  understood  she  was  to  leave  the  city 
next  morning,  and  not  to  interfere  in  their  family  difficulties  :  that 
Mr.  Lispenard  Stewart  and  his  sisters  unanimously,  he  thinks, 
begged  he  would  hear  his  (Lispenard's)  statement;  and  to  in- 
duce him  to  do  so,  told  him  that  he  {Lispenard  Stewart)  had 
received  that  day  a  communication  from  James  Watson  Webb, 
threatening  that  miless  he  complied  with  his  demands,  as  con- 
tained in  that  letter,*  he  woidd  publish  in  the  Courier  4*  En- 

*  The  letter,  referred  to  by  the  witness,  was  not  in  existence  at  the  time  oTthis 
pretended  conversati  m  about  it.  It  was  not  written  till  the  next  day,  and  its 
demands  are  predicated  on  the  very  report  of  this  interview.  See  the  letter,  p.  47 

G 


42 

qulrer  of  the  next  morning  a  statement  of  the  ivhole  business 
and  difficulties.  He  also  stated  to  the  witness,  as  a  further  in- 
ducement to  listen  to  his  story,  that  J.  Watson  Webb  had  given 
him  no  time  to  consult  with  his  friends;  and  as  a  farther  rea- 
son, that  the  witness  could  possibly  act  as  a  peace-maker,  and 
having  influence  with  his  brother  J.  Watson  Webb,  could  pre- 
vail on  him  to  suspend  the  contemplated  j)uhlicaiio7i  until  Lis- 
penard  Steivarfs  counsel  could  return  from  the  country ;  add- 
ing, that  not  only  his  counsel,  but  also  his  brothers-in-law,  were 
absent,  and  tha'  he  had  none  to  consult  with  or  advise  him  ;  and 
that  he  did  not  think  it  was  right  to  force  him  to  decide  with  so 
little  advice.  On  reflection,  and  under  these  circumstances,  and 
thus  urged,  the  witness  agreed  to  hear  his  statement  ;  and  he 
began  by  saying,  that  J.  Watson  Webb  had  accused  him  of  in- 
ducing his  uncle  Robert  to  alter  his  will  for  the  purpose  of 
cheating  his  sisters  out  of  the  estate.  He  stated  that  his  own 
income  was  more  than  twenty  thousand  dollars  per  annum, 
which  the  witness  knew  he  did  not  spend ;  that  his  children 
were  provided  for,  and  that  he  could  have  no  inducement  to 
defraud  his  sisters ;  that  the  witness  probably  knew  that  for 
years  they  had  had  difiiculty  with  his,  Lispenard  Stewart's,  fath- 
er's estate,  (meaning  Alexander  L.  Stewart;)  and  for  the  better 
securing  his  property  to  his  children,  he,  the  said  Alexander  L. 
Stewart,  had  made  his  brother  Robert  the  sole  heir  to  his  estate ; 
a  few  days  after  the  death  of  his  said  father  Alexander,  his  un- 
cle, Robert  Stewart,  made  a  will,  in  which  he  gave  all  his  estate, 
both  real  and  personal,  to  him,  Lispenard  Stewart,  and  his  sis- 
ters, to  be  shared  equally ;  that  this  will  remained  unaltered  un- 
til a  short  period  before  Robert  Stewart's  death :  that  James 
Watson  Webb,  and  his  sister  Sarah  Stewart,  were  the  principal 
witnesses  in  the  late  law-suit  which  is  now  going  to  the  Court 
of  Errors  ;  and  being  anxious  to  have  their  testimony,  he  found, 
on  consultation  with  his  counsel,  that  their  testimony  could  not 
be  admitted  whilst  they  remained  as  heirs  to  the  estate,  which 
they  were  as  the  will  then  stood,  as  it  made  them  interested 
parties :  that  he  then  went,  with  his  counsel  and  sisters,  to  his 
uncle  Robert,*  and  told  him  that  unless  he  altered  his  will  and 


*  See  deposition  of  Mrs.  and  Miss  Stewart  on  this  point,  p.  50. 


43 

gave  him  (Lispenard  Stewart)  all  the  estate,  the  testimony  of  J. 
Watson  Webb,  and  his  sister  Sarah  Stewart,  could  not  be  ad- 
mitted  in  the  above   law-suit :  that  his  uncle  Robert  appeared 
thunderstruck  and  alarmed  at  this  information,  and  agreed  to 
alter  his  will.     He  (Lispenard  Stewart)  pledging  himself  to  car- 
ry out  the  wishes  and  intentions  of  his  father  and  his  uncle 
Robert  Stewart,  and  that  he  would  hold  the  estate  in  trust  for 
the  joint  benefit  of  his  sisters ;  and  that  his  uncle  Robert  ap- 
peared anxious  until  the  new  will  was  completed ;  that  the 
present  will  was  then  made  in  his,  Lispenard  Stewart's,  favor ; 
and  that  he  intended  honestly  and  to  the  best  of  his  ability  to 
settle  the  estate,  and  hold  it  in  trust  for  the  benefit  of  all  his  sis- 
ters; that  he  did  not  intend  to  take  one  dollar  of  that  estate  for 
himself;  that  the  estate  at  that  time  owed  him  fifty  thousand 
dollars,  and  that  he  had  in  his  will  given  to  each  of  his  sisters  ten 
thousand  dollars,  comprising  or  being  the  amount  of  this  debt.  Af- 
ter the  conversation  as  detailed  above,  the  witness  visited  his  broth- 
er James  Watson  Webb,  at  his  office,  it  being  then  about  10  P.  M., 
and  did  so  at  therequest  of  Lispenard  Stewart,  'Ho  know  if  he 
would  suspend  the  public ationP*     The  brother  of  the  witness 
told  him  that  in  his  letter  to  Mr.  Lispenard  Stewart  he  had 
made  a  proposal  that  icould  settle  all  difficulties,  and  which 
was  to  settle  on  his  wife,  Mrs.  Helen  L.  Webb,  fifty  thousand 
dollars,  or  one-sixth  of  the  estate;  she  to  have  the  income  of  it 
during-  her  life,  and  at  her  death,  the  property  to  go  to  her 
children.   The  witness  then  returned  to  Lispenard  Stewart  and 
reported  what  his  brother  had  said  /f  and  Mr.  Stewart  then  ask- 
ed the  witness  to  suggest  what  was  the  best  course  for  him  to 
pursue.      The  witness  then  suggested  that  Mr.  Stewart  should 
make  a  just  and  correct  estimate  of  the  real  intrinsic  value  of 
the  estate,  and  deduct  any  debts  it  might  owe,  and  see  how 
much  each  one's  share  would  be,  and  after  deducting  from  the 
share  of  Mrs.  Helen  L.  Webb  the  debt  which  he   (Lispenard 
Stewart)  had  informed  the  witness,  J.  Watson  Webb,  owed,  to 

*  Bee  deposition  before  referred  to,  p.  50. 

t  Witne  here  again  testifies  to  a  conversation  about  a  letter  not  in  existence 
at  the  time,  but  written  and  sent  to  Lispenard  Stewart  the  next  day.  The  let. 
ter  is  altogether  based  on  the  pretended  statements  of  Mr.  Stewart  at  this  only 
interview  between  him  and  the  vtiLiJUi.    See  the  letter,  p.  47. 


44 

give  an  obligation  to  secure  to  the  said  Mrs.  Helen  L.  Webb 
the  amount  that  would  then  be  remaining,  in  the  mode  pro- 
posed by  the  brother  of  the  witness; — that  the  said  Lispenard 
Stewart  appeared  pleased  and  satisfied  with  this  plan,  and  the 
witness  thought,  would  make  the  arrangement,  but  his  sister, 
Mrs.  Sarah  Stewart,  objected,  and  told  him  to  do  nothing  in  a 
hurry,  and  by  no  means  to  put  anything  in  writing,  as  J.  Wat- 
son Webb  would  take  advantage  of  it ;  and  to  do  nothing 
without  consulting  his  counsel; — that  this  appeared  to  deter- 
mine him  to  do  as  she  recommended  ;  —  that  both  Mr.  Stewart 
afid  his  sisters  appeared  worried  at  the  threatened  publication, 
and  requested  witness  to  use  his  injiuence  loith  his  brother  to 
suspend  it ;  and  he  authorised  witness  to  say  to  his  brother 
that  if  he  would  suspend  the  publication,  he  would  communi- 
cate toith  him  after  the  arrival  of  his  counsel*  after  he  had  seen 
and  consulted  with  him.  Witness  thinks  it  was  Gen.  Sandford 
he  said  he  wished  to  see  and  consult  with.  The  witness  prom- 
ised to  use  his  influence  with  his  brother  to  suspend  the  publi- 
cation, and  went  again  to  his  brother's  office,  who  did  agree  to 
suspend  the  publication  until  Mr,  Stewart  could  see  Gen.  Sand- 
ford  ;  and  then  returned  to  Mr.  Stctvarfs  house,  in  Hudson- 
street,  to  communicate  his  success  to  the  family,  as  they  had 
requested  him  to  do,  it  beinor  then  near  midnight.* 

To  the  fifth  interrogatory  he  answers  and  says,  that  he  did 
make  a  memorandum  of  the  conversation  with  Lispenard  Stew- 
art, referred  to  in  his  answer  to  the  fourth  interrogatory ;  — that 
on  the  morning  after  the  said  conversation,  he  was  relating  it 
to  his  sister-in-law,  Mrs.  Helen  L.  Webb,  the  wife  of  J.  Watson 
Webb,  tvhen  the  latter  entered  the  room,  and  after  listening  to 
ivhat  the  ivitness  ivas  repeating  to  Mrs.  Webb,  he  asked  the  wit- 
ness if  he  had  any  objection  to  put  in  ivriting  what  had  taken 
'place  in  the  conversation  with  Mr.  Lisjienard  Steioart  the  pre- 
ceding evening ;-\  and  the  witness  replied  that  he  was  willing  to 
do  so,  and  commenced  writing  in  the  room,  and  when  he  had 
partly  finished,  his  brother  requested  him  to  be  very  particular, 

*  See  the  deposition  of  Mrs.  Stewart  and  sister. 

f  Compare  this  account  of  the  time  and  circumstances  of  making  the  mem. 
orandum  with  that  of  J.  W.  Webb's  letter,  p,  47. 


45 

and  orive  the  very  words  of  Mr.  Stewart,  or  as  near  as  possible  ; 
—  that  he  stopped  writing  and  went  down  to  the  office  of  the 
Courier  and  Enquirer,  where  his  brother  went  into  his  private 
office,  and  the  witness  remained  in  the  outer  room,  where  he 
completed  the  memorandum,  the  original  of  which  he  now  pro- 
duces, in  the  exact  state  as  it  was  then  prepared,  and  is  annexed 
hereto,  marked  A,  dated  New-York,  22d  July,  1843,  signed  by 
the  witness.  He  also  says  that  the  additional  memorandums 
on  the  same  paper,  the  one  signed  by  Jane  H.  Averill,  Walter  W. 
Webb,  and  C.  L.  Webb,  and  the  other  signed  by  H.  Averill,  were 
added  thereto  at  the  time  and  place  they  respectively  bear  date ; 
that  after  writing  and  signing  the  said  memorandum,  he  showed 
it  to  his  brother,  J.Watson  Webb,  who  took  a  copy  of  it,  and  re- 
-turned  him  the  original. 

To  the  sixth  interrogatory  he  answers  in  the  negative. 

To  the  first  cross  interroofatory  he  answers  and  says,  that  he 
is  the  brother  of  James  Watson  Webb. 

To  the  second  cross  interrogatory  he  answers  and  says,  that  he 
called  at  the  house  of  Lispenard  Stewart  at  his  own  instance 
only,  and  not  at  the  request  or  instance  of  any  other  person ; 
and  that  his  motive  and  inducement  for  calling  was  to  see  Mrs. 
Mary  L.  Webb,  as  mentioned  in  his  answer  to  the  fourth  direct 
interrogatory  ;  — that  he  called  without  the  previous  knowledge 
of  his  brother,  James  Watson  Webb;  — that  he  never  pretended 
to  Lispenard  Stewart  that  he  was  ignorant  that  difficulties  ex- 
isted between  him  and  his  family,  with  his  brother,  J.  Watson 
Webb,  but  that  he  was  ignorant  of  the  particulars  of  said  diffi- 
culties until  related  to  him  (as  already  detailed)  by  said  Lispe- 
nard Stewart; — that  he  only  knew  generally  and  from  the 
public  notoriety  of  the  fact,  that  Robert  Stewart  had  disinherited 
his  nieces,  as  their  father.  Alexander  L.  Stewart,  had  previously 
done  ;  — that  his  visit  at  the  north,  after  a  protracted  absence  of 
some  years,  to  see  his  friends  and  for  the  general  benefit  of  his 
health,  which  he  stated  at  the  time  of  the  interview  to  Lispenard 
Stewart,  telling  him  at  the  same  time  he  did  not  wish  to  inter- 
fere or  take  any  part  in  the  family  difficulties,  and  that  it  was 
only  at  the  earnest  request  of  said  Lispenard  Stewart  that  he 
consented  to  listen  to  his  details  and  conversation  on  the  sub- 
ject, at  the  time  of  visiting  his  house  on  the  21st  July,  1843. 


46 

To  the  third  cross  interrogatory  he  answers  and  says,  that  he 
made  no  proposal  to  Lispenord  Stewart  to  pay^  or  to  offer  or 
to  authorise  him  to  offer,  J.  Watson  Webb  any  sum,  of  money 
or  other  conipensaiio?i,  except  as  detailed  in  his  answer  to  the 
fourth  direct  interrogatory*  and  that  was  done  merely  as  a  sug- 
gestion in  reply  to  a  request  of  Lispenard  Stewart,  that  the 
witness  should  suggest  to  him  what  he  thought  was  the  best 
course  to  pursue. 

To  the  fourth  cross  interrogatory  he  answers  and  says,  that 
in  his  interview  with  Lispenard  Stewart  the  latter  was  about  to 
make  some  proposition,  and  Xhe  witness  took  out  his  pencil  to 
make  a  memorandum  of  it,  in  order  to  avoid  mistake  or  misun- 
derstanding, as  Mr.  Stewart  had  requested  him  to  be  very  par- 
ticular in  anything  he  said  to  James  Watson  Webb  as  coming 
from  said  Stewart;  —  that  he  does  not  recollect  whether  he 
wrote  down  anything  at  the  time,  but  if  he  did,  it  must  have 
been  only  a  iew  words,  as  Mrs.  Sarah  Stewart  at  once  objected 
to  putting  anything  on  paper;  — that  he  had  no  intention  at  the 
time,  nor  did  he  write  down  any  of  the  conversation  with  Lis- 
penard Stewart  in  his  presence  or  during  the  interview,  nor  has 
he  subsequently  written  or  made  any  memorandum  of  said  in- 
terview or  conversation  with  said  Lispenard  Stewart  other  than 
as  referred  to  and  detailed  in  his  answer  to  the  fifth  direct  inter- 
rogatory. 

To  the  fifth  cross  interrogatory  he  answers  and  says,  that 
James  Watson  Webb  did  not  assist  in  writing,  altering,  or  dic- 
tating, the  memorandum  referred  to  in  his  answer  to  the  fifth 
direct  interrogatory,  otherwise  than  merely  requesting  him  to 
put  down  the  exact  words  of  Lispenard  Stewart,  as  near  as  he 
could  recollect  them.  J.  Watson  Webb  and  his  wife  were 
present,  when  the  witness  commenced  writing  the  said  memo- 
randum at  the  house  of  said  J.  W.  Webb ;  but  he  is  not  certain 
if  any  one  was  present  when  he  completed  writing  the  memo. 
randnni  at  the  office  of  the  Courier  and  Enquirer;  though  Mr. 
Daniels,  or  Mr.  Morrell,  might  have  come  in  whilst  he  was 
writing;  but  that  he  had  no  intercourse  or  communication  with 
any  one  on  the  subject  of  said  memorandum,  further  than  as 
already  declared  by  him. 

*  See  depositions  of  Mrs.  and  Miss  Stewart,  above  referred  to,  p.  50. 


47 

To  the  sixth  cross  interrogatory  he  answers  and  says,  that 
Mrs.  Mary  J.  Webb,  Mrs.  Sarah  Stewart,  and  Miss  Stewart,  all 
sisters  of  Lispenard  Stewart,  were  present  at  the  conversation 
alluded  to  ;  that  the  interview  and  conversation  took  place  at 
the  house  of  said  Lispenard  Stewart,  in  Hudson-street,  in  the 
city  of  New- York,  on  the  21st  day  of  .Tuiy,  1843,  and  that  it 
continued  from  about  7  P.  M.  till  near  or  quite  midniiiht,  in- 
cluding the  time  spent  in  visiting  his  brother  at  his  office,  at  the 
request  of  Lispenard  Stewart. 

To  the  seventh  cross  interrogatory  he  answers  and  says,  that 
he  saw  his  brother  J.  Watson  Webb,  in  the  course  of  the  day  in 
which  he  had  the  conversation  with  Lispenard  Stewart ;  but 
when  or  how  long  before  he  went  to  the  house  of  said  Stewart, 
he  is  unable  to  recollect;  but  thinks  it  was  ^'- probahb/'  at  din- 
ner time  the  conversation  was  repeated  to  J.  Webb,  at  the  time 
and  manner  as  detailed  in  his  answer  to  the  fourth  and  fifth 
direct  interrog^atories. 

Henry  L.  Webb. 

Examination  taken,  reduced  to  writing,  and  by  the  witness 
subscribed  and  sworn  to,  at  Neio-Orleans,  this  XZth  day  of 

December,  1843. 

Wm.  L    Hodge, 

James  M.  Wray,  )  Commissioners. 

L.  C.  D. 


Hodge,    \ 
M.  Wray,  > 

>UNCAN,         J 


Letter  of  J.  W.  Webb,  referred  to  in  the  preceding  testimony. 

New-  York,  July  22,  1843. 
To  Mr.  Lispenard  Stewart  : 

Sir  —  My  brother,  Henry  L.  Webb,  called  npon  me  last  eve- 
ning, and  related  the  conversation  lohich  he  had  heldwith  you 
in  regard  to  the  document  which  you  call  the  last  will  of  Mr. 
Robert  Stewart.  /  immediately  requested  him,  to  reduce  to 
writing  your  explanation  of  the  modeimvhich  that  document 
was  procured,  which  of  course  he  did.* 

*  Compare  this  account  of  the  time  of  making  the  memorandum  with  that 
given  by  Henry  L.  Webb  in  the  preceding  testimony. 


48 

1  enclose  you  a  copy  ;  and  if  you  will  take  it  to  your  "  three 
lawyers"  for  inspection,  they  will,  if  they  are  not  both  knaves 
and  fools  ^  tell  you  at  once,  that  it  will  be  idle  in  you  now.^  to  at- 
tempt to  sustain  your  will  if  1  oppose  it.  His  testimony  alone, 
finally  and  conclusively  disposes  of  the  whole  controversy. 

1  now  propose  to  withdraw  all  opposition  to  the  so  called 
will  being  admitted  to  probate,  on  condition  that  you  ivill  at 
once  settle  upon  Helen  the  sum  of  jifty  thousand  dollars,  or  the 
one-sixth  part  of  the  estate  —  she  to  have  the  income  of  it  dur- 
ing her  lifetime,  and  at  her  death  the  whole  sum  to  be  divided 
among  her  children.  In  the  event  of  her  dying  before  her 
youngest  child  shall  reach  the  age  of  tiventy-one  years,  I  to  re- 
ceive the  income  until  that  period,  and  then  the  principal  to  be 
divided  as  above.  I  to  name  the  trustee,  whose  duly  it  shall 
be  to  invest  the  trust  money  in  such  securities  as  we  vcmy  joint- 
ly direct  in  writing,  or  as  the  survivor  may  direct,  in  like  man- 
ner. 

If  you  think  my  testimony  of  value  in  the  Lispenard  will 
case,  it  is  your  interest  to  make  the  settlement  without  refer- 
ence to  the  estate,  as  I  could  then  swear,  that  I  had  no  interest 
directly  or  indirectly  in  the  estate,  at  the  same  time  1  would  be 
directly  in  the  recovery  by  the  plaintiff,  against  whom  I  would 
be  testifying.  This  would  render  my  testimony  all  important. 
You  have  the  assent  in  writing  of  all  the  other  heirs,  to  your 
will  going  to  probate ;  and  as  by  this  act  they  abandoned  me, 
I,  in  my  turn,  abandon  them  to  your  "  tender  mercies."  Thus 
the  withdrawal  of  my  opposition,  settles  the  whole  question, 
and  the  will  goes  to  probate,  unless,  indeed,  I  am  forced  to  pub- 
lish our  correspondence  on  Tuesday,  when  the  knowledge  of 
the  conditions  upon  which  the  will  was  made,  will  equally  en- 
able your  uncle  Robert's  widow,  or  any  other  person,  to 
break  it. 

In  conclusion,  be  advised  even  by  me.  For  once  in  your 
life,  act  promptly  and  from  your  own  judg7nent  and  convictions 
of  what  is  proper.  A  member  of  the  bar  told  me  yesterday,  that 
about  the  time  of  the  last  trial,  your  uncle  Robert  called  on  him 
and  gave  him  $100,  and  told  him  that  he  wanted  to  get  rid  of 
Sandford,  who  had  received  from  him  at  different  times,  on  ac- 


49 

count  of  the  Alice  Lispenard  will  alone,  more  than  eight  thous- 
and dollars  !*     Comment  is  unnecessary. 

You  have  now  to  decide,  and  that  too,  promptly,  whether  you 
will  force  me  to  make  the  publication  on  Tuesday,  and  then  in 
addition,  to  have  the  will  rejected  by  the  Surrogate,  or  whether, 
complying  with  my  terms,  and  using  the  documents  signed  by 
the  other  heirs,  you  will  at  once  enter  into  the  quiet  and  peace- 
able possession  of  the  estate,  preserving  my  testimony,  such  as 
it  is,  as  to  the  capacity  of  Alice  Lispenard  to  make  a  will.  I 
care  not  how  you  decide,  but  again  warn  you  not  to  delay. 

Your  ob't  serv't, 

J.  Watson  Webb. 

[After  the  incontestible  proof,  which  a  comparison  of  Henry 
L.  Webb's  testimony  and  his  brother's  letter  presents,  that  in  two 
separate  instances  he  swears  to  the  details  of  conversations  on 
the  subject  matter  of  a  letter  not  in  existence  at  the  time, 
and  which  letter  itself,  not  written  till  (he  next  day,  predicates 
its  bold  and  large  demands  on  one  of  those  very  pretended  con- 
versations, is  it  uncharitable  to  say,  that  so  gross  an  inaccuracy 
of  memory,  with  such  evidence  of  a  lively  imagination,  throws 
a  doubt  over  the  correctness  of  all  to  which  he  does  testify  7  We 
think  not.  He  saw  Lispenard  Stewart  but  the  one  evening,  (this 
the  21st  of  July,)  and  had  no  other  interview  with  him,  yet 
swears  that  Lispenard  Stewart  then  told  him  that  he  had  received 
a  letter  from  J.  W.  Webb,  and  states  its  contents,  which  letter,  as 
is  fully  proved,  was  not  in  existence  till  the  day  after,  the  22d, 
and  the  demands  in  its  contents  never  heard  of  till  then!  Is  it 
not  possible  —  nay,  is  it  not  probable,  that  such  a  witness  might, 
and  in  this  case  did,  apply  in  his  recollections  of  a  conversation 
of  two  or  three  hours,  what  was  said,  and  is  true,  of  a  Deed  to 
secure  a  debt,  to  what  it  is  known  never  could  have  been  said, 
or  if  by  any  possibility  it  could,  was  utterly  untrue  in  reference 
to  the  Will,  and  to  all  the  parties  named  in  connexion  with  it. 

One  word  here  in  regard  to  this  letter  of  J.  W.  Webb.     We 

*  J.  W.  Webb  well  knew  that  this  was  untrue,  and  that  the  whole  expense 
of  the  litigation  through  all  the  courts,  including  the  fees  of  all  the  counsel 
employed  therein,  as  well  as  the  costs  of  court,  only  amounted  to  this  sum. 

r 


50 

see  in  it  the  price  at  which  he  estimates  his  testimony  in  the 
LisPENARD  Will  Case:  whatever  others  may  think  of  it,  he 
values  it  at  $50,000!     While  he  here  proclaims  his  own  testi- 
mony ALL-IMPORTANT,  wc  would  Call  to  mind  the  baseness  of 
using  the  columns  of  his  own  newspaper  on  the  27ih  of  July, 
1843,  as  he  did,  to  pass  an  invidious  judgment  upon  that  of  ano- 
ther witness  in  the  same  case,  and  that  witness  an  inobfrusive 
and  unoffending  relative,  justly  appreciated  by  every  one  who 
knows  her,  in  all  ranks  of  society:  yet  thus  subjected,  in  the 
publicity  of  a  print  at  his  control,  to  his  epithets  of  reproach.   To 
give  weight  to  that  invidious  judgment,  he  puts  it  in  the  mouth 
of  one  of  the  most  eminent  and  honorable  of  the  members  of  tlie 
bar  from  whom  he  asserts  that  he  received  it.     The  name  of 
that  o-entleman,  furnished  to  me,  is  concealed,  (as  is  much  of 
the  scurrility  of  the  abusive  manuscript  sent  with  it,)  under  as- 
terisks, in  the  columns  of  his  newspaper;  and  that  with  good 
reason,  for  that  gentleman,  his  own  counsel  —  Prescott  Hall, 

Esq. utterly  denies  the  truth  of  it,  did  so  to  J.  W.  Webb,  in 

the  hearing  of  others,  in  the  Surrogate's  Court,  and  I  doubt  not 
will  do  so  again,  in  any  and  every  place  in  which  it  may  be 
asserted.] 

BEFORE  THE  SURROGATE  OF  NEW- YORK. 

In  the  matter  of  the  Probate  \ 
of  the  last  Will  and  Tes-  f 
tament  of  Robert  Stew-  ^ 
art,  deceased.  y 

City  and  County  of  Neio-  York,  ss. :  Sarah  Stewart,  of  the 
city  of  New- York,  wife  of  Charles  S.  Stewart,  and  Eliza  Stew- 
art of  the  same  city,  gentlewomen,  sisters  of  Lispenard  Stewart, 
of  the  same  city,  being  duly  sworn,  do  severally  depose  and 

say, 

That  they  have  heard  read  the  deposition  of  Henry  L.  Webb, 
as  taken  in  the  above  Cause,  under  a  commission  to  New-Or- 
leans, and  that  the  statements  made  therein,  as  well  as  in  the 
paper  signed  by  said  Webb,  and  annexed  to  the  said  deposition, 
are  in  every  material  matter,  wholly  and  entirely  untrue. 


SI 

That  these  deponents  were  present  during  the  whole  conver- 
sation between  said  Henry  L.  Webb  and  said  Lispenard  Stew- 
art, at  the  time  referred  to  in  his  deposition,  and  both  took  part 
in  said  conversation,  and  they  severally  depose  and  say,  that 
said  Lispenard  Stewart  did  not,  in  such  conversation,  make  any 
statements  whatsoever  to  said  Webb,  or  in  his  presence,  of  hav- 
ing urged  his  uncle,  or  held  out  any  inducements  or  promises 
to  his  uncle,  to  change  his  will,  or  anything  to  that  effect. 

And  these  deponents  further  say,  that  it  is  untrue  that  these 
deponents,  with  or  without  said  Lispenard  Stewart,  ever  went 
to  said  Robert  Stewart,  to  induce  him  to  alter  his  will  —  and  if 
any  statement  to  that  effect  had  been  made  in  their  hearing, 
they  would  have  corrected  it. 

And  these  deponents  further  say,  that  during  said  conversa- 
tion, the  said  Lispenard  Stewart  did  speak  of  his  uncle  owing  to 
him  a  large  amount  of  money,  for  which  he  had  little  or  no 
security,  and  that  he  had  urged  him  to  secure  it,  and  had  in- 
duced his  sister,  Mrs.  Stewart,  and  his  brother-in-law,  Mr. 
Charles  Stewart,  and  his  counsel,  Mr.  Sandford,  to  urge  him  to 
secure  said  debt,  which  was  the  only  statement  made  by  said 
Lispenard  Stewart  on  that  occasion,  in  respect  to  any  influence 
used  by  him  with  his  uncle,  and  which  statement  so  made  by 
said  Lispenard  Stewart  is  true. 

And  these  deponents  further  say,  that  it  is  utterly  untrue  that 
said  Lispenard  Stewart,  or  these  deponents,  requested  said  Hen- 
ry L.  Webb  to  hear  their  statements  respecting  the  difficulties 
with  J.  Watson  Webb,  or  that  he  requested  them  to  desist  from 
speaking  about  them  ;  but  on  the  contr  iry,  he  professed  to  be 
ignorant  of  the  difficulties  in  the  family,  and  stated  that  he  would 
like  to  understand  what  could  be  done  to  settle  the  differences; 
that  he  came  as  a  friend,  was  in  no  way  interested  except  to 
make  peace ;  he  was  a  friend  to  both  sides,  and  wished  some- 
thing could  be  done;  he  thought  he  could  keep  Watson  from 
publishing,  and  wished  Lispenard  to  make  some  proposal.  He 
suggested  several  propositions  for  said  Lispenard  to  make,  and 
finally  said,  he  wished  him  to  offer  him  $5000,  or  some  other 
sum:  and  repeatedly  urged  him  to  make  some  proposal,  or  to 
authorize  him  to  make  some  proposal.    To  which  said  Lispenard 


52 

Stewart  invariably  replied,  that  he  would  have  nothing  to  do 
with  him  —  the  said  J.Watson  Webb — and  would  give  him 
nothing,  and  that  he  might  publish  what  he  liked. 

And  these  deponents  further  say,  that  it  is  also  entirely  false 
that  said  Lispenard  Stewart  either  urged  or  wished  said  Henry 
L.  Webb  to  go  to  said  J.  Watson  Webb  for  any  purpose  ;  but 
on  the  contrary,  persisted  constantly  in  saying,  that  he  would 
offer  him  nothing,  would  give  him  nothing,  and  would  have 
nothing  to  do  with  him,  and  would  not  give  him  a  single  cent. 
And  these  deponents  also  say,  that  it  is  untrue  that  they  knew, 
or  were  informed  by  said  Henry  L.  Webb,  that  he  was  going 
from  their  house  to  see  said  J.  Watson  Webb;  that  after  being 
at  their  residence  some  time,  he  said  he  had  an  appointment  with 
a  gentleman  at  the  American  Hotel,  but  he  would  return,  as  he 
expected  to  meet  his  brother,  Walter  Webb,  at  deponents'  house 
that  evening :  that  when  he  was  about  leaving,  he  was  express- 
ly told  by  said  Lispenard,  that  he  did  not  wish  him  to  see  his 
brother  Watson  as  from  him  ;  and  said  Henry  declared  he  would 
not :  that  he  was  gone  some  time,  and  when  he  returned,  these 
deponents  suspected,  from  his  conversation,  he  had  in  the  mean 
time  seen  J.  Watson  Webb,  and  upon  said  Lispenard  Stewart 
chargfinor  him  with  havino-,  in  his  absence,  been  to  see  J.  W. 
Webb,  he  admitted  he  had  seen  him.  Walter  Webb  did  not  call 
that  evening,  and  about  ten  o'clock,  or  soon  after,  said  Henry  L. 
AVebb  went  away,  and  did  not  return  again  that  evening,  as  is 
untruly  stated  in  said  deposition. 

And  these  deponents  also  say,  that  it  is  untrue,  that  said 
Henry  L.  Webb,  on  his  return  to  their  house,  repeated  to 
them  or  said  Lispenard  Stewart,  any  such  proposal  from  said 
J.  Watson  Webb,  as  is  stated  in  said  deposition  ;  but  on  the 
contrary,  concealed  having  seen  him  until  charged  with  having 
done  so  by  said  Lispenard  Stewart ;  and  the  proposal  of  settling 
$50,000  on  Mrs.  Helen  Webb,  as  coming  from  J.  Watson  W^ebb, 
was  never  heard  of  by  these  deponents,  nor  as  they  believe  by 
said  Lispenard  Stewart,  until  it  was  communicated  by  said  J. 
Watson  Webb  the  next  day  in  a  letter  to  said  Lispenard  Stew- 
art, containing  a  copy  of  said  Henry  L.  Webb's  statement  of 
that  evening's  conversation ;  and  threatening  to  oppose  the  will 


63 

on  said  statement  of  Henry  L.  Webb,  unless  Lispenard  Stewart 
would  settle  $50,000  on  his  wife. 

That  it  is  also  untrue,  that  said  Lispenard  Stewart  asked  said 
Henry  L.  Webb  to  propose  any  plan  of  settlement,  or  expressed 
himself  pleased  with  any  plan  proposed  by  said  Webb,  and  that 
so  far  from  requesting  him  to  urge  his  brother  to  suspend  his 
publication  on  any  proposition  from  him,  (said  Lispenard,)  these 
deponents  and  said  Lispenard  Stewart  were  utterly  surprised  by 
an  assertion  next  day  in  the  Courier  &.  Enquirer,  that  such  pub- 
lication was  suspended  at  his  request,  said  assertion,  and  every 
thing  in  that  respect  contained  in  said  deposition,  being  abso- 
lutely and  unqualifiedly  false. 

SARAH  A.  STEWART, 
ELIZA  BARCLAY  STEWART. 
Sworn,  this  2d  January,  1844,  before 

F.  R.  TiLLOu,  Alderman,  (fcc. 

The  following  is  the  memorandum  of  Henry  L.  Webb,  re- 
ferred to  in  his  testimony  and  the  letter  of  J.  W.  Webb,  of  July 
22,  1843: 

"Mr.  Lispenard  Stewart  last  evening  said  to  me,  I  wish  to 
explain  to  you  how  I  am  situated  in  regard  to  the  estate  of  my 
deceased  father,  Alexander  L.  Stewart,  and  my  deceased  uncle, 
Robert  Stewart,  and  what  induced  uncle  Robert  to  alter  his 
will  and  make  me  his  heir.  My  father,  for  the  purpose  of  better 
securing  fiis  property  to  his  children,  made  uncle  Robert  his  sole 
heir.  Uncle  Robert,  in  a  few  days  after  the  death  of  my  father, 
made  a  will,  in  which  he  gave  all  his  estate,  both  real  and  per- 
sonal, to  myself  and  sisters,  to  be  shared  equally.  This  will  re- 
mained unaltered  until  a  short  period  before  his  death.  James 
Watson  Webb  and  sister  Sarah  Stewart  were  our  principal 
witnesses  in  the  late  law  suit  which  is  now  going  to  the  Court 
of  Errors.  Being  desirous  of  having  their  testimony,  after  con- 
sulting my  counsel  and  my  sisters,  I  found  they  could  not  be 
admitted  as  witnesses  if  they  remained  heirs  of  the  estate,  (which 
they  were  as  the  will  then  was,)  being  interested.  I  then,  with 
my  counsel  and  sisters,  went  to  uncle  Robert  and  told  him,  that 
unless  he  altered  his  will  and  gave  the  estate  to  me,  that  the 


54 

testimony  of  Watson  and  Sarah  could  not  be  admitted.  He 
was  thunderstruck  and  greatly  alarmed,  and  immediately  con- 
sented, and  appeared  very  anxious  until  the  new  will  was  com- 
pleted, I  pledging  myself  to  him  that  I  would  carry  out  the 
wishes  and  intentions  of  him  and  my  father,  and  hold  it  in 
trust  for  the  joint  benefit  of  my  sisters.  Uncle  Robert  then 
made  the  present  will  in  my  favor;  and  I  intend  honestly,  and 
to  the  best  of  my  ability,  to  settle  the  estate  and  hold  it  in  trust 
for  the  joint  benefit  of  all  my  sisters. 

"HENRY  L.  WEBB." 

[The  following  endorsement  and  signatures,  which  had  been 
entered  upon  the  above  memorandum  of  Henry  L.  Webb,  was 
at  once  pronounced  inadmissible  by  the  Court,  and  not  allowed 
to  go  upon  the  record.  It  was,  of  course,' impracticable  for  the 
devisee  to  introduce  the  rebutting  testimony  which  he  could 
have  exhibited.  It  forms  no  part  of  the  record  of  the  Court,  but 
J.  W.  Webb  having  published  it  as  such,  in  the  Courier  and  En- 
quirer, it  is  here  also  laid  before  the  reader.  Could  the  publisher 
of  this  pamphlet  persuade  himself  to  make  known  the  circum- 
stances in  which  that  endorsement  was  made,  the  disguise  of 
purpose  in  the  interview  on  which  it  is  predicated,  the  secrecy 
with  which  the  signatures  were  affixed,  and  the  outrage  thus 
perpetrated  upon  the  rights  of  hospitality  and  the  sanctity  of  pri- 
vate life,  the  reader  would  turn  from  it  with  incredulity  if  not 
contempt.  It  is  sufficient  to  say,  that  Mrs.  Mary  Webb  never 
knew  or  suspected  at  the  time  the  existence  of  such  a  memoran- 
dum, or  the  giving  of  such  endorsements. 

As  to  the  subject  matter  it  involves,  Mrs.  Webb  being  now  in 
a  distant  State,  it  is  not  possible,  without  an  undesirable  delay 
in  the  appearance  of  this  publication,  to  secure  by  affidavit  her 
recollections  of  the  original  conversations  between  her  brother 
Lispeuard  and  Henry  L.  Webb,  or  those  of  her  interview  with 
the  latter  in  Troy.  This  much,  however,  is  certain  and  true, 
that  during  the  evening  of  Henry  L.  Webb's  visit  in  Hudson- 
street,  on  the  21st  of  July  last,  Mrs.  Webb  being  herself  much 
occupied,  and  to  leave  town  next  morning,  was  absent  from 
the  parlor  at  different  times,  and  heard  detached  parts  only  of 


55 

the  conversation ;  and  that  she  repeatedly  afterwards  stated  to 
various  members  of  her  family,  that  on  many  points  in  which 
Henry  L.  Webb  had  said  that  her  brother  Lispenaid  had  said  so 
and  so,  she  had  corrected  him  and  told  him  that  it  was  not  true. 
Moreover,  in  a  brief  and  hasty  letter  from  Troy  a  day  or  two  after 
her  arrival,  and  after  a  notice  in  the  Courier  and  Enquirer  announ- 
cing the  postponement  of  a  threatened  article  at  the  request  of 
Lispenard  Stewart,  she  thus  writes:  "I  mentioned  to  them  all 
here  my  disapproval  of  Watson's  course  in  attacking  you  all  in 
the  paper,  and  that  the  statement  in  the  Courier  of  l^ispenard's 
wishing  Watson  to  put  off  the  publication,  was  not  true," — thus, 
incidentally  but  positively  contradicting,  with  her  sister  Mrs. 
Charles  Stewart,  and  Miss  Stewart,  one  part  of  Henry  L.Webb's 
memorandum  and  testiniony.  Having  thus  her  explicit  denial 
in  writing  to  a  part  of  the  memorandum  which  Henry  L.  W'ebb 
and  the  endorsers  say  she  confirmed,  the  publisher  is  slow  to  be- 
lieve that  either  from  inadvertence  or  want  of  recollection,  she 
understandingly  gave  her  assent  to  the  correctness  of  the  memo- 
randum on  the  record,] 

Troy,  July  2eth,  1842. 
We,  the  undersigned,  were  present  and  heard  Mrs.  Mary  J. 
Webb  say,    that    she    was  present  and  heard  Mr.    Lispenard 
Stewart  relate  to  Henry  L.  Webb,  the  conversation  detailed  in 
the  foregoing  writing,  signed  by  the  said  Henry  L.  Webb. 

Jane  H.  Averell, 
Walter  W.  Webb, 
C.  L.  Webb. 


Jnhj26th,  1843. 
I  was  present  this  morning  when  Mr.  H.  L.  Webb  called  the 
attention  of  Mrs.  Mary  Webb  to  the  conversation  had  between 
said  Henry  and  Mr.  Lispenard  Stewart.  He  detailed  said  con- 
versation substantially  as  is  within  written,  and  Mrs.  Webb  as- 
sented to  its  correctness. 

H.  Averell. 


56 

Neio-Orleans,  Dec.  13th,  1843. 

This  is  the  paper  referred  to  in  my  answer  to  the  fifth  direct 
interrogatory. 

Henry  L.  Webb. 


WILL  OF  1838. 

In  the  name  God,  amen  :  I,  Robert  Stewart,  of  the  City  of 
New- York,  being  of  sound  mind  and  memory,  bnt  considering 
the  uncertainty  of  life,  do  make  and  publish  this  my  last  Will 
and  Testament  in  manner  following,  hereby  revoking  all  former 
Wills  by  me  made. 

I  will  and  devise  to  my  nephew,  Lispenard  Stewart,  my  exec- 
utor hereinafter  named,  all  my  estate,  whether  real,  personal,  or 
mixed,  whatsoever  and  wheresoever,  and  whether  in  posses- 
sion, reversion,  or  remainder,  one-sixth  part  thereof  to  be  for  Iiis 
own  use  and  benefit ;  one-sixth  part  thereof  in  trust  for  the  use 
of  his  sister,  Helen  L.  Webb,  (wife  of  James  W.  Webb.)  less 
seventeen  thousand  dollars,  to  be  added  in  eqval  proportions  to 
the  othfr  five-sixth  parts ;  one-sixth  thereof  in  trust  for  the  use 
of  his  sister,  Mary  J.  Webb,  (wife  of  Stephen  H.Webb;)  one- 
sixth  part  thereof  in  trust  for  the  use  of  his  sister,  Sarah  A. 
Stewart,  (wife  of  Charles  S.  Stewart ;)  one-sixth  part  thereof  in 
trust  for  the  use  of  his  sister,  Eliza  B.  Stewart;  and  one-sixth 
part  thereof  in  trust  for  the  use  of  his  sister,  Matilda  W.  Stew- 
art, and  to  the  exclusion  of  any  interference  or  control  on  the 
part  of  any  husband,  which  they  or  any  of  them  have  or  may 
have,  or  liability  for  their  debts.  The  income  from  the  said 
five-sixth  parts,  together  with  such  portions  of  the  principal 
thereof  as  to  the  said  Lispenard  Stewart  may  seem  necessary, 
(deducting  as  aforesaid  from  the  share  of  the  said  Helen  L. 
Webb,)  to  be  applied  to  the  use  of  the  said  several  parties,  at 
such  times  and  in  such  sums  as  he,  the  said  Lispenard  Stewart, 
may  determine.  And  in  case  of  the  death  of  any  of  his  sisters 
hereinbefore  named,  leaving  lawful  issue,  I  direct  that  the  share 
of  such  sister,  or  any  balance  thereof  remaining,  be  equally  di- 
vided amongst  her  children  :  and  if  any  of  them  die  without  is- 
sue, I  further  direct  that  their  share,  or  any  balance  remaining, 
be  equally  divided  amongst  her  surviving  sisters,  and  the  said 


57 

Lispenard  Stewart,  or  the  children  of  any  of  them  which  may 
be  deceased,  per  stipes  and  not  per  capita. 

I  will  and  bequeath  to  my  wife,  Sarah  A.  Stewart,  during 
her  natural  life  and  widowhood,  two  hundred  and  fifty  dollars 
per  annum,  to  be  paid  to  her  by  my  said  executor  quarter  year- 
ly, from  my  decease.  But  in  the  event  of  her  raising  any  ques- 
tions, or  commencing  any  suit  in  regard  to  any  other  pretended 
rights,  then  and  in  such  case  I  direct  my  said  executor  to  stop 
the  payments  to  have  been  otherwise  made  to  her  under  the  pro- 
vision aforesaid. 

And  I  hereby  request  and  direct  my  friend,  Richard  Riker,  of 
the  city  of  New- York,  Esquire,  or,  in  the  event  of  his  decease, 
my  friend,  Abraham  T.  Hunter,  of  the  said  city,  physician,  the 
trustees  named  in  the  last  will  and  testament  of  my  deceased 
brother,  Alexander  L.  Stewart,  to  execute  and  fulfil  the  trusts 
therein  named,  upon  the  order  and  appointment  of  the  said  Lis- 
penard Stewart,  my  said  executor,  in  the  same  manner  to  all  in- 
tents and  purposes,  as  if  such  order  had  been  made  by  me  in  my 
lifetime. 

And  I  hereby  appoint  the  said  Lispenard  Stewart  my  sole  ex- 
ecutor, to  see  the  intention  of  this  my  last  Will  and  Testament 
faithfully  done  and  executed,  with  full  power  and  authority  to 
grant,  bargain, sell,  mortgage,  and  convey  the  whole  or  any  part  of 
my  estate  which  he  may  deem  necessary  for  the  purposes  of  this 
my  Will,  and  with  further  power  to  my  said  executor  to  appoint 
by  his  last  will  and  testament,  such  trustee  or  trustees  as  he  may 
elect,  to  execute  and  fulfil  whatever  trusts  may  remain  unexecu- 
ted under  this  my  Will. 

[l.  s.]  Robert  Stewart. 

Signed,  sealed,  published,  and  declared  by  the  said  Robert 
Stewart  as  and  for  his  last  Will  and  Testament,  in  the 
presence  of  us  who,  at  his  request,  in  his  presence,  and 
in  presence  of  each  other,  have  subscribed  our  names 
as  witnesses,  this  twentieth  day  of  April,  1838,  (thirty- 
eight.) 

John  R.  Murray,  No.  30  Laight-street,  N.  Y. 
Wm.  H.  Hobart,  No.  67  Prince-street,  N.  Y. 
{Endorsed)  Robert  Stewart's  Will,  April  20th,  1838. 

8 


58 

DECISION  OF  THE  SURROGATE. 

Ill  the  matter  of  proving  the  ^ 

last  Will  and  Testament  of  \  Surrogate's  Office,  Jan.  4. 1844. 
Robert  Stewart,  deceased.    \ 

After  a  careful  examination  of  the  evidence,  I  am  of  opinion 
that  this  Will  must  be  admitted  to  probate  upon  producing  the 
the  usual  proof  of  its  custody. 

DAVID  B.  OGDEN. 


APPENDIX, 


All  the  heirs  at  law  of  Mr.  Robert  Stewart,  except  J.  W.  Webb,  gave  a 
unanimous  verbal  approval  of  his  Will,  on  the  evening  of  the  27th  of  June 
last,  the  (Jay  after  his  death,  and  unitedly  expressed  to  Lispenard  Stewart  their 
wish  for  its  immediate  probate.  It  was  afterwards  determined  to  give  this  ap- 
proval in  writing.  Before  the  following  paper  was  drawn,  however,  Mr.  and 
Mrs.  Le  Roy  liad  gone  to  the  country  for  the  summer,  and  their  written 
approval  was  sent  by  letter.  On  their  return  to  town  for  the  winter,  they  an- 
nexed their  signatures,  with  those  of  the  rest,  to  the  document  here  given. 

A. 

We,  whose  names  are  hereunto  subscribed,  being  heirs  at  law  and  next  of 
kin  of  Robert  Stewart,  deceased,  having  investigated  the  situation  of  his  es- 
tate, and  being  perfectly  satisfied  that  his  Will,  bearing  date  the  third  day  of 
May,  1843,  was  the  result  of  his  unbiassed  judgment;  and  that  the  condition 
of  his  estate  has  been  fairly  exhibited  to  us,  do  concur  in  the  opinion  that  the 
said  Will  should  be  admitted  to  probate  without  any  opposition,  and  will  not 
ourselves  oppose  it. 


New-Yoek,  July  13, 1843. 


HELEN  L.  WEBB, 

S.  H.  WEBB, 

MARY  J.  WEBB, 

C.  S.  STEWART, 

SARAH  A.  STEWART, 

ELIZA  BARCLAY  STEWART, 

H.  C.  LE  ROY, 

MATILDA  STEWART  LE  ROY. 


Note  B  —  page  25. 
BEFORE  THE  SURROGATE  OF  NEW- YORK. 

In  the  matter  of  proving  the 
last  Will  and  Testament  of 
Robert  Stewart,  dec'd. 

To  Dadd  B.  Ogde'i,  Esq.,  Surrogate  of  the  County  of  New- York: 
The  petition  of  Helen  L.  Webb,  wife  of  James  Watson  Webb,  of  the  city  of 

New-York,  respectfully  showeth  — 
That  she  is  one  of  the  heirs  at  law  of  Robert  Stewart,  late  of  said  city,  gen. 


60 

tleman,  whose  will  is  now  before  the  Surrogate  for  probate.  That  she  has 
been  informed  and  believes  that  an  appearance  has  been  entered  in  her  name, 
and  counsel  appeared  on  her  behalf,  in  opposition  to  the  probate  of  said  will. 
That  such  appearance  has  been  made,  and  such  opposition  is  contrary  to  her 
wishes  and  intention,  and  that  she  has  not  authorised  any  person  to  appear  for 
her  as  probate  or  solicitor,  and  that  she  is  not  willing  that  said  will  shall  be 
opposed  in  her  name. 

Your  petitioner  therefore  prays  that  she  may  be  authorised  to  appear  by  next 
friend  or  proctor,  independent  of  her  husband,  for  the  purpose  of  withdrawing 
any  opposition  to  said  will,  in  her  name,  or  on  her  behalf,  and  to  protect  her 
rights  in  the  premises. 

And  your  petitioner  prays  that  Major  S.  H.  Webb  may  be  appointed  such 
next  friend,  to  appear  and  answer  for  her  in  the  premises,  and  to  protect  her 
rights  therein. 

And  your  petitioner  will  pray,  &c. 

HELEN  L.  WEBB. 

W.  L.  Cutting,  Proctor  for  Petitioner. 

City  and  County  of  Neio-  York,  ss.  —  Helen  L.  Webb,  the  above  petitioner, 
being  duly  sworn,  says,  that  the  facts  stated  by  her  in  the  foregoing  petition,  as 
of  her  own  knowledge,  are  true,  and  those  stated  upon  the  information  of  others, 
she  believes  to  be  true. 

Sworn  before  me,  this  20th  day  of  October,  1843. 

David  B.  Ogden. 

In  a  pretended  report  of  the  proceedings  of  the  Surrogate's  Court,  on  the 
26th  of  October  last,  published  in  the  Courier  &  Enquirer  of  the  next  morning, 
J.  W.  Webb  takes  occasion,  among  other  abusive  matter,  to  utter  a  wholesale 
libel  upon  his  brother.  Major  Stephen  H.  Webb,  and  wife,  Mary  J.  Webb,  Mr. 
and  Mrs.  C.  S.  Stewart,  and  Mr.  and  Mrs.  H.  C.  Le  Roy,  in  which  he  charges 
them  with  being  bribed  and  bought  off  by  Lispenard  Stewart  to  support  the 
Will :  charges  Lispenard  Stewart  with  having  threatened  to  turn  his  sister, 
Mrs.  Webb,  and  her  children,  into  the  streets,  if  her  husband,  S.  H-  Webb, 
oppo.=5ed  the  will :  charges  Mr.  and  Mrs.  C.  S.  Stewart  with  having  been  the 
keepers  of  Mr.  Robert  Stewart  during  his  illness,  and  of  preventing  all  access  to 
him  by  other  members  of  the  family,  thus  holding  him  in  duress,  he  being  out 
of  his  mind ;  and  Mr.  Le  Roy  of  having  attempted  to  deprive  Mrs.  Helen  L. 
Webb  and  her  children  of  their  share  in  the  Stewart  estate,  &c. 

The  following  affidavits,  marked  C,  D,  and  E,  were  made  immediately  to  lay 
before  the  court,  in  a  pretended  report  of  the  proceedings  of  which  these  false 
and  libellous  accusations  were  made. 


61 

c. 

BEFORE  THE  SURROGATE. 

In  the  matter  of  the  Probate  of  ^ 
the  last  Will  and  Testament  > 
of  Robert  Stewakt,  dec'd.  J 

City  and  County  of  New-  York,  ss.  —  Stephen  H.  Webb  and  Mary  J.  Webb, 
of  the  city  of  New- York,  being  duly  sworn,  do  severally  depose  and  say,  that 
they  were  not  prevented  from  opposing  the  probate  of  the  Will  of  the  late 
Robert  Stewart,  by,  or  on  account  of,  any  promises  or  threats  of  Mr.  Lispenard 
Stewart.  That  it  is  entirely  untrue  that  said  L'spenard  Stewart  threatened  to 
turn  his  sister  (one  of  these  deponents)  out  of  doors,  for  opposing,  or  if  she 
opposed  the  probate  of  said  Will,  as  asserted  by  James  Watson  Webb  ;  and 
that  these  deponents  were  never  debarred  or  prevented  from  visiting  the  said 
Robert  Stewart  during  his  last  illness,  or  at  any  other  time,  by  either  Mr.  and 
Mrs.  Charles  Stewart,  or  any  other  member  of  the  family;  and  that  the  fre- 
quency of  their  visits  were  in  no  wise  limited,  except  by  his  own  wishes,  to 
prevent  his  being  disturbed,  or  to  avoid  their  being  confined  to  a  sick  room. 

S.  H.   WEBB, 
MARY  J.  WEBB. 

Sworn  before  me,  this  25th  day  of  October,  1843. 

F.  A.  Tallmadge,  Recorder  of  the  City  of  New- York. 

D. 
BEFORE  THE  SURROGATE. 


3  0f  ^ 

ent  > 
-d.i 


In  the  matter  of  the  Probate  of 
the  last  Will  and  Testament 
of  Robert  Stewart,  dec' 

City  and  County  of  New-  York,  ss.  —  Charles  S.  Stewart,  of  the  City  of  New- 
York,  Chaplain  in  the  U.  S.  Navy,  and  Sarah  A.,  his  wife,  being  duly  sworn,  do 
severally  depose  and  say,  that  they  were  not  prevented  from  opposing  the  pro- 
bate of  the  Will  of  the  late  Robert  Stewart,  by,  or  on  account  of,  any  promises 
or  threats  of  Mr.  Lispenard  Stewart.  That  it  is  entirely  untrue  that  said 
Lispenard  Stewart  ever  threatened  to  turn  his  sister,  Mrs.  Mary  J.  Webb,  or 
her  children,  out  of  doors,  for  her  or  her  husband  threatening  to  oppose  said 
Will,  or  for  any  other  cause,  to  their  knowledge  or  belief;  and  that  it  is  also 
entirely  untrue  that  the  said  Robert  Stewart  was  in  a  state  of  durance,  or  under 
any  restraint  whatever,  at  the  time  of  making  his  said  Will,  or  at  any  time 
during  his  illness ;  or  that  these  deponents,  or  either  of  them,  prevented  the 
members  of  the  family,  or  any  of  them,  from  having  access  to  him  at  anytime, 
or  on  any  occasion  ;  and  that  all  the  statements  made  by  James  Watson  Webb 
in  relation  to  such  duress  or  restraint,  or  to  the  state  of  mind  of  the  said  Robert 
Stewart,  as  published  in  the  Courier  and  Enquirer  of  this  day,  in  a  pretended 
report  of  proceedings  in  this  cause,  are  utterly  and  entirely  untrue.  And  these 
deponents  further  eay,  that  the  said  Robert  Stewart  continued  in  the  full 


62 

possession  of  his  faculties,  and  attended  to  business  to  the  morning  of  the  day 
on  which  he  died. 

CHARLES  SAMUEL  STEWART, 
SARAH  A.  STEWART. 
Sworn  before  me,  this  27th  day  of  October,  1843. 

Charles  W.  Sandford,  Commissioner  of  Deeds,  New-York. 

E. 
BEFORE  THE  SURROGATE. 

L\  the  matter  of  the  Probate  of  i 

the  last  Will  and  Testament  > 
of  Robert  Stewart,  dec'd.  ) 

Cily  and  County  of  New- York,  ss.  —  Herman  C.  Le  Roy  and  Matilda  S.  his 
wife,  of  the  cily  of  New- York,  being  duly  sworn,  do  severally  depose  and  say, 
that  they  were  not  prevented  from  opposing  the  probate  of  the  will  of  the  late 
Robert  Stewart,  by,  or  on  account  of,  any  promises  or  threats  of  Mr.  Lispenard 
Stewart.  That  it  is  entirely  untrue  that  said  Lispenard  Stewart  ever  threat- 
ened to  turn  his  sister,  Mrs.  Mary  J.  Webb,  or  her  children,  out  of  doors,  for 
any  cause  whatever,  to  their  knowledge  or  belief;  and  ihat  it  is  entirely  untrue* 
to  these  deponents'  knowledge  and  belief,  that  these  deponents,  or  any  of  the 
family,  were  prevented  from  visiting  Mr.  Robert  Stewart  during  his  last  illness, 
or  at  any  other  time,  by  Mr.  and  Mrs.  Charles  Stewart,  or  either  of  them,  or 
any  other  member  of  the  family  ;  and  that  all  the  statements  made  on  this  sub- 
ject by  James  Watson  Webb  in  relation  to  such  duress  or  restraint,  or  the 
state  of  mind  of  said  Robert  Stewart,  as  published  in  the  Courier  &  Enquirer 
of  the  27lh  October  last,  are  utterly  untrue,  to  the  best  of  these  deponents' 
knowledge  and  belief;  as  is  also  the  statement  that  these  deponents,  or  either 
of  them,  sought  to  deprive  the  wife  or  children  of  said  .Tames  Watson  Webb  of 
her  share  or  interest  in  the  estate  of  said  Robert  Stewart,  or  in  such  portion 
thereof  as  the  said  Lispenard  Stewart  might  be  disposed  to  appropriate  to  her 
or  their  use. 

HERMAN  C.  LE  ROY, 
MATILDA  S.  LE  ROY. 

Sworn  before  me,  this  6th  day  of  November,  184J3. 

Charles  W.  Sandford,  Commissioner  of  Deeds,  New-York. 

Cily  and  County  of  Neiv.  York,  ss.  —  Charles  S.  Stewart  and  Sarah  A.,  his 
wife,  being  duly  sworn,  say,  that  they  do  not  know  or  believe  that  the  said  Her- 
man C.  Le  Roy,  or  Matilda,  his  wife,  sought  or  attempted  to  deprive  the  wife 
or  children  of  James  W.  Webb  of  her  share  or  interest  in  the  estate  of  the 
said  Robert  Stewart,  or  in  such  portion  thereof  as  the  said  Lispenard  Stewart 
might  be  disposed  to  appropriate  to  her  or  their  use. 

CHARLES  SAMUEL  STEWART, 
SARAH  A.  STEWART. 
Sworn  before  me,  this  6th  day  of  November,  1843. 

Charles  W.  Sandford,  Commissioner  of  Deeds 


63 

JNoTE  F  —  page  12. 
The  Answer  in  Chancery,  filed  under  affidavit,  of  J.  W.  Webb,  April 
6th,  1830,  and  quoted  from  in  the  opening  pages  of  this  pamphlet,  gives  the 
entire  history  of  the  reasons  and  manner  in  which  he  became  proprietor  of  the 
Morning  Courier  in  December,  1827.  After  stating  that  Alexander  L.  Stew- 
art  had  made  a  loan  to  John  B.  Skillman,  for  securing  f  9,371  of  which,  judg- 
ment  had  been  confessed  by  Skillman,  and  an  execution  levied  by  Mr.  Stewart 
on  the  Morning  Courier  and  its  properties,  the  Answer  in  Chancery  thus  pro- 
ceeds  : 

"  And  this  defendant  (J.  W.  Webb)  further  answering  says,  that  previous  to 
the  said  abovementioned  loan,  of  which  the  abovementioned  sum  of  $9,371 
was  a  part,  by  the  said  Alexander  L.  Stewart  to  the  said  John  B.  Skillman,  the 
said  Alexander  L.  Stewart  had  advised  with  this  defendant  respecting  the  pro- 
priety  of  making  such  loan,  and  this  defendant  had  strongly  recommended  such 
loan  to  be  made.     And  this  defendant  further  says,  that  after  the  said  above- 
mentioned  execution  was  issued,  and  in  the  early  part  of  the  said  month  of 
December,  1827,  and  in  consequence  of  the  belief  which  this  defendant  then 
honestly  entertained,  that  the  said  newspaper  establishment,  if  sold  by  the 
sheriff  under  the  said  execution,  would  produce  but  a  very  small  sum  of  money, 
and  that  the  said  Alexander  L.  Stewart  would  thereby  lose  a  great  part  of  the 
money  which  this  defendant  had  advised  him  to  loan  to  the  said  John  B.  Skill- 
man,  (the  said  Skillman  having  no  other  property  of  any  value,)  he,  this  de- 
fendant,  considering  himself  the  innocent  but  unfortunate,  adviser  of  the  said 
loan,  concluded  to  come  forward,  and  to  take  an  assignment  o/S6,850  of  the  said 
debt  due  to  the  said  Alexander  L.  Stewart  by  the  said  John  B.  Skillman,  and  to 
secure  the  repayment  of  the  said  sum  to  the  said  Alexander  L.  Steioart,  and  also  to 
purchase  the  said  newspaper  establishment,  toiih  the  said  abovementioned  sum. 

And  this  defendant  further  answering  says,  that  having  come  to  the  deter- 
mination abovementioned,  he,  this  defendant,  with  the  consent  of  the  said  John 
B.  Skillman,  on  or  about  the  17th  day  of  December,  in  the  said  year  1827,  re- 
ceived from  the  said  Alexander  L.  Stewart  an  assignment  of  the  above  sum  of 
^6,8.^)0,  part  of  the  debt  aforesaid,  and  with  the  same,  by  an  assumption 
of  certain    other    confidential    debts   of  the  said    John   B.   Skillman,  that 

is  to  say  of   $300  to ,  $300  to -,  and  $250 

to ,  all  of  the  said  city  of  New- York,  merchants,  which  this  de- 

fendant  avers  he  did  assume  and  agree  to  pay  ;  he,  this  defendant,  on  the  18th 
day  of  December,  in  the  said  year  1827,  purchased  of  the  said  John  B.  Skill- 
manthe  said  newspaper  establishment  railed  the  Morning  Courier,  including  its 
types,  presses,  materials,  and  all  other  property  of  every  kind,  and  received  a  bill 
of  sale  or  conveyance  therefor  from  the  said  John  B.  Skillman." 

CONTRACT 

BETWEEN    J.    W.    WEBB    AND    ALEXANDER    STEWART. 

This  Indenture  of  two  parts,  made  this  eighteenth  day  of  December,  A.  D. 
eighteen  hundred  and  twenty-seven,  by  and  between  James  Watson  Webb,  of 


64 

the  city  of  New- York,  of  the  first  part,  and  Alexander  L.  Stewart,  aJso  of  said 
city,  of  the  second  part ;  witnesseth,  that  whereas  the  said  party  of  the  second 
part,  hath  assigned  to  the  said  party  of  the  Hrat  part,  the  right  which  said  par- 
ty of  the  second  part  hath  or  had  to  receive  from  John  B.  Skillman  the  sum  of 
six  thousand  eight  hundred  and  fifty  dollars,  being  part  of  a  debt  due  to  said 
party  of  the  second  part  from  said  Skillman  ;  and  said  Skillman,  in  satisfaction 
and  payment  to  said  party  of  the  first  part,  hath  assigned  and  transferred  to  said 
party  of  the  first  part  the  newspaper  establishment  of  the  Morning  Courier, 
and  also  all  the  debts  due  and  to  grow  due  from  subscribers  to  said  Skillman, 
and  from  customers  for  subscriptions,  advertisements,  or  otherwise,  as  by  ref- 
erence to  a  certain  indenture  between  said  party  of  the  first  part  and  said  Skill- 
man  wi  JJ  appear.  And  the  said  party  of  the  first  part  hath  agreed  to  pay  to  said 
party  of  the  second  part  the  sum  of  six  thousand  eight  hundred  and  fifty  dol- 
lars aforesaid  in  equal  semi-annual  instalments  of  thirty-four  hundred  and 
twenty-five  dollars  each  and  every  half  3'ear,  beginning  the  computation  there- 
of from  and  after  the  eighteenth  day  of  December,  eighteen  hundred  and  twen- 
ty-seven, together  with  lawful  interest  payable  half  yearly.  Now  the  said 
party  of  the  first  part,  hereby  covenants  to  the  said  party  of  the  second  part, 
that  the  said  party  of  the  first  part,  will  well  and  truly  pay  to  said  party  of  the 
second  pari,  the  sum  of  thirty-four  hundred  and  twenty-five  dollars  on  the  eigh- 
teenth day  of  June  next,  and  the  like  sum  on  the  eighteenth  day  of  December 
next;  and  also  will  on  the  half  yearly  days  of  payment  abovementioned,  pay 
lawful  interest  on  the  whole  sum  then  unpaid  to  the  said  party  of  the  second 
part,  and  to  the  end  that  the  said  party  of  the  second  part  shall  have  opportu- 
nity of  knowing  in  what  manner  said  party  of  the  first  part  conducts  the  busi- 
ness of  the  said  newspaper  establishment  which  it  is  understood  the  said  party 
of  the  first  part  intends  to  conduct,  the  said  party  of  the  first  part  hereby  cove- 
nants with  the  said  party  of  the  second  part,  that  he  will  at  all  times  exhibit 
and  disclose  to  said  party  of  the  second  part,  the  books  and  accounts  of  said 
establishment,  without  reserve,  when  thereunto  requested,  and  to  the  end  that 
the  said  party  of  the  second  part  may  be  secured  for  the  punctual  and  just  pay- 
ment  of  the  said  several  sums,  and  interest  at  the  said  several  days  aforesaid, 
the  said  party  of  the  first  part  hereby  covenants  with  the  said  party  of  the 
second  part,  that  on  failure  of  the  said  party  of  the  first  part  to  pay  either  of 
the  said  sums  of  money,  or  the  said  interest,  on  either  of  the  days  so  as  afore- 
said fixed  for  such  payments,  the  said  party  of  the  second  part,  or  any  person 
thereto  authorised  by  him,  shall  have  right  to  enter  upon  whatever  tenements 
the  said  party  of  the  first  part  shall  in  fact  occupy,  and  then  and  there  possess 
himself  by  his  own  acts,  or  by  his  agent,  of  all  the  books,  accounts,  notes  and 
securities,  pertaining  in  any  way  to  such  newspaper  establishment,  which  said 
party  of  the  first  part  shall  have  thereon  ;  also  shall  have  right  to  seize  and 
possess  himself  by  his  own  act,  or  by  his  agent,  of  all  the  said  books,  accounts, 
notes  and  securities,  pertaining  to  said  establishment,  wheresoever  else  they 
may  be,  and  thereupon  shall  have  right  exclusively  to  demand,  sue  for  and  col- 
lect, all  and  every  of  the  debts  and  dues  to  said  party  of  the  first  part,  for  and 


65 

on  account  of  said  establishment ;  and  on  public  notice  in  any  daily  newspaper 
published  in  the  city  of  New- York,  the  right  of  said  party  of  the  first  part  to 
demand,  receive  or  collect  said  debts  or  dues,  shall  thereupon  cease,  and  thence- 
forth be  vested  in  said  party  of  the  second  part.  And  the  said  party  of  the 
second  part  in  the  event  of  such  seizure  and  possession  of  said  books, 
accounts,  notes  and  securities,  hereby  covenants  with  said  party  of  the  first 
part  to  place  the  same  in  the  hands  of  some  suitable  agent  or  attorney  to  col- 
lect all  such  debts  and  dues  until  the  amount  collected  shall  he  sufficient  to 
cover  all  the  balance  due  to  him  on  account  of  the  said  several  sums  and  inter- 
est as  aforesaid,  together  with  all  such  costs  and  charges  as  he  the  said  party 
of  the  second  part  shall  have  been  subjected  to  in  making  the  arrangement  and 
in  making  the  collections ;  and  thereupon  and  thereafter,  shall  re-deliver  all 
said  books,  accounts,  notes,  and  securities  which  may  be  remaining  unto  the 
said  party  of  the  first  part,  or  such  other  person  or  persons  as  the  law  shall  di- 
rect. And  the  said  party  of  the  first  part  further  covenants  with  the  said  party 
of  the  second  part,  that  upon  any  such  failure  of  payments  as  hereinbefore 
stipulated,  he,  the  said  party  of  the  first  part,  will  upon  request  assign  to  the 
said  party  of  the  second  part  the  said  newspaper  establishment,  including  the 
good  will  thereof,  the  press,  types,  and  every  other  matter  and  thing  pertaining 
to  said  establishment,  to  he  held,  used,  and  disposed  of  by  the  said  party  of  the 
second  pari  for  the  payment  of  his  said  debt  in  the  same  manner  as  above 
provided  in  relation  to  the  said  debts  and  dues. 

In  witness  whereof,  the  said  party  of  the  first  part  hath  hereunto  set  his 
hand  and  seal  this  eighteenth  day  of  December,  one  thousand  eight  hun- 
dred and  twenty-seven. 

JAMES  WATSON  WEBB,        [u  s.] 
A.  L.  STEWART.  [l.  s.] 

Sealed  and  delivered  in  presence  of 

F.  J.  Kinney.      [l.  s.] 


l^on\\3> 


